DLE17 v Minister for Immigration

[2018] FCCA 637

FEDERAL CIRCUIT COURT OF AUSTRALIA

DLE17 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 637

Catchwords:
MIGRATION – Immigration Assessment Authority – Safe Haven Enterprise visa – whether the Authority failed to consider all of the integers of the applicant’s case – no jurisdictional error identified – further amended application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5H, 5J, 36, 473CB, 473DC, 476

Applicant: DLE17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 2427 of 2017

Judgment of: Judge Street

Hearing date: 15 March 2018

Date of Last Submission: 15 March 2018

Delivered at: Sydney

Delivered on: 15 March 2018

REPRESENTATION

Counsel for the Applicant: Ms T Baw

Solicitors for the Applicant: Michael Kah
Kah Lawyers

Counsel for the Respondents: Mr M Smith

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. Grant leave to the applicant to file in Court the further amended application dated 2 March 2018 and the Court dispenses with the need for the filing of an electronic copy of the same.

2. The further amended application is dismissed.

3. The applicant pay the first respondent’s costs fixed in the amount of $7,000.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2427 of 2017

DLE17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Immigration Assessment Authority (“the Authority”) under Part 7AA made on 6 July 2017 affirming the decision of the delegate not to grant the applicant a Safe Haven Enterprise visa.

2. The applicant was found to be a citizen of Afghanistan and his claims were assessed against that country. The applicant arrived in Australia as an unauthorised maritime arrival on 13 October 2012. On 16 December 2016, the delegate found the applicant failed to meet the criteria for the grant of a protection visa. The applicant was found to be a Shia Tajik who had also lived in Iran and Pakistan. The applicant claimed to fear harm from the Taliban and other anti-government elements as a Shia Tajik, as a former government employee, and as a failed asylum seeker returning from a western country.

The Authority’s decision

1. Following the adverse decision of the delegate, the Authority wrote to the applicant on 21 December 2016 identifying that there were limited circumstances in which the Authority could take into account new information. The Authority’s letter provided an attached fact sheet and practice direction giving the applicant an opportunity to put on new information and submissions.

2. On 1 February 2017, the Authority invited the applicant to comment on new country information that the Authority was entitled to take into account under s 473DE(3)(a) of the Act. That new information concerned the situation in Afghanistan having evolved over recent times and the broader security situation and how it could impact on the real chance or risk of harm to the applicant in Afghanistan in the reasonably foreseeable future. No submission or new information or response to the letter was provided by the applicant to the Authority.

3. The Authority in its reasons dated 6 July 2017, identified the background to the visa application having regard to the material referred under s 473CB of the Act, as well as the obtaining of the country information and providing the applicant with an opportunity to comment as referred to above. The Authority summarised the applicant’s claims and, in particular, referred to the fact that in 2011 the applicant ceased his work as a driver for the Ministry of Agriculture, Livestock and Foodstuff as there were too many bomb blasts and suicide attacks which targeted government workers.

4. The Authority noted that the applicant feared that he would be targeted by the Taliban and other groups including ISIS on return to Afghanistan due to his Shia Tajik ethnicity, his cumulative profile as a Shia, as a former government employee, and as a failed asylum seeker who had spent time in a western country and would be perceived to be a spy for pro-government forces. The applicant also feared harm from his cousins who are members of the Taliban and who he believed were implicated in his father’s death and knew about his former employment.

5. The Authority referred to the applicant’s claims to fear harm from his father’s cousins who have been affiliated with the Taliban for many years, and who he believes were implicated in his father’s and brother’s death in 2008. The Authority referred to country information in relation to anti-government elements (“AGEs”) systematically targeting civilians who were associated with or perceived to be supporting the Afghan government or international community, and to country information including the Taliban openly targeting government officials and people associated with the international community.

6. The Authority accepted that the applicant was employed by the Ministry of Agriculture, Livestock and Foodstuff for approximately four years from 2007 until 2011. The Authority noted that although the applicant ceased working as a government driver in 2011 due to a fear of harm whilst undertaking employment, the applicant was not in fact threatened or harmed by either the Taliban or his cousins during the course of his employment. The Authority also noted that the applicant continued to reside in Kabul for a further year after he had ceased working for the Ministry without being targeted, despite residing in the same area until his departure with his family.

7. The Authority noted that although the applicant may have left the position due to a fear of harm, the applicant had not been a government employee since 2011 and that after a period of over six years, there is no indication that he has any offer of a similar position on return to Afghanistan. The Authority found that the applicant would not return to similar government employment in Kabul. The Authority referred to country information in relation to government employees being targeted by AGEs, however there is no indication that former government drivers, such as the applicant, are targeted due to their former employment.

8. The Authority noted that when the applicant ceased employment, being over six years ago, and given that he was not of interest to the AGEs prior to his departure in 2012, the Authority was not satisfied the applicant would be of interest to the Taliban or his cousins or other AGEs on return due to his former employment. The Authority was not satisfied that as a former government driver, the applicant would face a real chance of serious harm in Kabul from either his cousins, the Taliban or other AGEs.

9. The Authority referred to country information in relation to societal discrimination on the basis of ethnicity and religion, and accepted that the applicant is a Shia Tajik, who may be subject to discrimination on return in relation to employment as a consequence of nepotism even within the Shia Tajik community, although he does have family links in Kabul where he lived for a period of approximately seven years.

10. The Authority was not satisfied there was a real chance that as a consequence of such discrimination the applicant would be denied the capacity to earn a livelihood, or that he would be subject to economic hardship, such that it would threaten his capacity to exist or otherwise suffer treatment that may be considered serious harm within the meaning of s 5J of the Act.

11. The Authority referred to the applicant’s former representative’s submission to the delegate to the effect that the Taliban had an operational capacity in Kabul, and that areas that were assessed as safe are now being targeted by the Taliban, and that other AGEs are emerging, and that there are at least three Islamic State of Khorasan Province (“ISKP”) cells in Kabul, and the submission that the applicant made as a Shia who attends mosque on important religious dates such as Ashura and for family funerals, is that he would be at risk of harm from one of these attacks.

12. The Authority referred to country information indicating there was an overall decline in the security situation in Afghanistan in 2015 which continued into 2016, although there was a slight decrease in the overall number of security incidents. The Authority found however that the Afghan government remains in effective but not absolute control of all major urban centres which were considered to be more secure and provided greater protection against insurgent attacks than in rural areas.

13. The Authority found, notwithstanding the applicant’s representative’s submissions regarding the effectiveness of the Afghan forces, country information indicated that the Afghan government continues to maintain effective, although not absolute control over Kabul which has a higher concentration of government buildings, international organisations, diplomatic compounds, and international and national security forces, and that the Afghan Army and international forces have put in place a range of counter-measures to deter, prevent and respond to insurgent attacks which are still carried out mostly against high profile targets.

14. The Authority accepted that there have been high profile suiciding and complex attacks in Kabul, although as indicated by DFAT, the Taliban were responsible for the majority of these attacks which primarily targeted those associated with the government or international community, including particular groups with whom the applicant, as a Shia Tajik, has not been associated since 2011. For the reasons summarised above the Authority found the applicant’s fear of harm was not well-founded.

15. The Authority identified country information in relation to Kabul, being the largest city in Afghanistan with over four million people, and made findings in relation to the attacks that had occurred. The Authority accepted that the ISKP has an operational presence in Kabul and had demonstrated the capacity to undertake sporadic high profile attacks, and that Shias had been one of their targets which, as indicated by the Authority, occurred at Shia mosques/shrines on days of particular religious significance.

16. The Authority however found that the ISKP’s operational capacity and attempts at expansion have been diminished by the Afghan National Security Force operations, battles with the Taliban and difficulties gaining local community support. The Authority found ISKP is now largely confined to a handful of districts in Nangarhar and its engagement in battles with the Taliban and government forces and consistent losses have contributed to a significant weakening of the group in Afghanistan. It was in those circumstances the Authority found that given the ISKP’s diminished operational capacity arising from the continued efforts of the Afghan government international community, including the USA and Taliban as well as alienation from the local population, that the Authority was satisfied that ISKP’s capacity and influence is limited.

17. The Authority found that given ISKP’s limited influence and the opposition by the Taliban, Afghan National Security Force (“ANDSF”), religious leaders, and as well as the more general population to its attempts to provoke sectarian violence, the Authority was not satisfied that attacks on Shias in Kabul indicate any support for any ongoing wider sectarian campaign in Kabul in the reasonably foreseeable future, such that the applicant will face a real chance of serious harm from AGEs in Kabul. The Authority was not satisfied, given ISKP’s diminished influence and operation capacity arising from the continued efforts of the Afghan government, international community and the Taliban to limit ISKP, as well as the government’s continued effective control of Kabul and increased security measures at Shia mosques, that ISKP will be able to conduct further attacks more than infrequently.

18. The Authority found that Kabul remains under government control, and was not satisfied that the attacks against Shias by ISKP would escalate in frequency or that they indicate the commencement of a wider sectarian campaign in Kabul. The Authority found there was evidence of increased effective security measures being implemented at Shia mosques and given the overall strong security presence in Kabul, the ongoing effective government control, the limited influence and weakened operational capacity of ISKP, and the size and diversity of the population of Kabul, the size of the Shia population, and the applicant’s lack of association with groups primarily targeted by insurgents in Kabul, the Authority found the applicant’s fear of harm by Islamic State, the Taliban or any other insurgents in Kabul as a Shia Tajik and former government employee is not well-founded.

19. The Authority was not satisfied the applicant faced a real chance of persecution as a Shia Tajik and as a former government employee upon return to Kabul in the reasonably foreseeable future. The Authority was not satisfied the applicant would be imputed with an adverse political opinion in Kabul as a Shia Tajik who had resided in a western country or in Iran or Pakistan for a considerable period. The Authority was not satisfied the applicant faces a real chance of harm on return to Kabul, and found the applicant could safely access the same by air.

20. The Authority was not satisfied the applicant met the requirements of the definition of “refugee” in s 5H(1) of the Act and found the applicant did not meet the criteria under s 36(2)(a) of the Act.

21. The Authority in considering complementary protection referred to the discrimination that the applicant might be subjected to as a Shia Tajik and was not satisfied that such nepotism in Kabul would result in the applicant being denied the capacity to subsist, or that it would result in him being arbitrarily deprived of his life, or would constitute the death penalty or torture. The Authority was not satisfied that such nepotism amounts to cruel or inhumane treatment or punishment or degrading treatment or punishment. The Authority did not accept that such treatment constitutes significant harm as defined by s 36(2)(a) of the Act.

22. The Authority also took into account the security situation in Kabul and country information in that regard, and was satisfied that the government security forces continued to remain in effective control in Kabul. The Authority was not satisfied there was a real risk of the applicant facing significant harm on the basis of the general security situation in Kabul for any reason. The Authority was not satisfied there were substantial grounds for believing that, as a necessary and foreseeable consequence to the applicant being returned from Australia to Afghanistan, there is a real risk the applicant would suffer significant harm. The Authority found the applicant did not meet the criteria under s 36(2)(aa) and affirmed the decision under review.

The grounds

1. The grounds in the further amended application are as follows:

   Ground 1

   The Second Respondent (IAA) erred by failing to consider all the integers of the applicant’s claims:

   a. The IAA failed to consider that the applicant feared being collateral damage from insurgent group attacks in Kabul.

   Particulars:

   i. Insurgent groups, including the Taliban and ISIS continued to conduct high-profile attacks in urban centres;

   ii. DFAT reports stated that the security trend in Kabul was that it was deteriorating; and

   iii. Insurgent attacks are mainly aimed at government or international forces but the highest number of casualties inflicted concern civilians.

   b. The IAA failed to consider that the Afghan government could not offer protection to civilians.

   Particulars:

   i. DFAT reports state that even in areas where the government forces remain strong, such as Kabul, attacks remain a common occurrence even in these areas;

   ii. Such attacks often cause significant casualties amongst civilian bystanders in addition to being specifically targeted; and

   iii. Insurgent attacks in Kabul were up around 60 percent on the same period in 2014.

   c. The IAA failed to consider whether the applicant could find any work in Afghanistan that would enable him to earn a living to subsist.

   Particulars:

   i. The applicant was last employed by the government in Afghanistan;

   ii. The Delegate found that he had to modify his behaviour as he faced a real chance of harm if he returned to a government job in Kabul;

   iii. The IAA was satisfied that he would not return to a government job in Kabul;

   iv. After working at his government job for 4 years, he left due to his fear of harm and he remained unemployed for the last year prior to his departure from Afghanistan;

   v. The Delegate’s and IAA’s above conclusions are mere speculation unsupported by any evidence; and

   vi. The Delegate and IAA have failed to consider, by reference to the evidence, if any alternate employment could be obtained by the applicant in Afghanistan.

   Ground 2

   Further or in the alternative, the IAA erred as it selectively relied on certain parts of the country reports to support some of its findings, whilst failing to deal with contradictory information provided in the same reports that supported the applicant’s claims, and this error amounted to legal unreasonableness.

   Particulars:

   i. DFAT Country Information Report Afghanistan 18 September 2015 [3.5], [3.8], [2.33], [5.15];

   ii. EOSO Country of Origin Information Report Afghanistan Security Situation 1 November 2016 [p 25, 27 & 28];

   iii. DFAT Thematic Report on Security Conditions in Afghanistan 1 January – 31 August 2016 [2.1 – 2.2]; and

   iv. DFAT Thematic Report on Hazarus in Afghanistan 8 February 2016 [2.18] and [3.14].

Ground 1(a)

1. In relation to ground 1(a), Ms Baw of counsel for the applicant, took the Court to the Authority’s finding at paragraph 19 and the footnoted country information in the reference at footnote 25 of the Authority’s reasons. Ms Baw took the Court to other parts of that country information report at footnote 27, paragraph 33 of the Authority’s reasons in relation to AGEs and civilian casualties. Ms Baw also sought to rely upon other country information in relation to insurgent attacks in Kabul. Nothing said by Ms Baw from the bar table identified any logical basis upon which it could be said that the Authority had failed to consider the applicant’s claim in respect of which the Authority made a dispositive adverse finding. The Authority provided logical and rational reasons in support of that adverse finding as summarised above.

2. Ms Baw submitted that there was material supporting that the Taliban and ISIS are continuing to conduct high profile attacks on the urban centres and that there was material to support that the security trend in Kabul was deteriorating and that the insurgent attacks were mainly aimed at government and international forces, but the highest number of casualties are civilians. Those references do not identify a basis upon which this Court could include that the Authority had not made findings that were reasonably open to it in relation to the applicant’s claimed fear of collateral damage from insurgent groups in Kabul. All the material referred to by Ms Baw identifies is that other findings might also have been open to the Authority. The ability to identify that other possible findings might have been open does not identify a basis upon which it can be said that the Authority’s reasons as summarised above were unreasonable or illogical. It was a matter for the Authority to determine what country information the Authority accepted.

3. The proposition that the Authority had selectively identified material does not identify a basis upon which it can be said that the findings of the Authority adverse to the applicant were not open. Nor is there any basis to suggest that the Authority’s selection of country information on which it relied was done other than with an open mind reasonably capable of persuasion as to the merits of the applicant’s claims. The identification of country information specifically supporting the findings of the Authority are not conduct by reason of which a fair-minded lay observer might reasonably apprehend that the Authority might not bring an impartial mind to the determination of the matter on its merits. It was a matter for the Authority to decide what country information it accepted. The findings by the Authority as to the security situation in Kabul were logical and supported. There was no failure to consider an integer of the applicant’s claims as alleged in ground 1(a). No jurisdictional error as alleged in ground 1(a) is made out.

Ground 1(b)

1. In relation to ground 1(b), Ms Baw of counsel took the Court to country information in relation to government control and civilian casualties and submitted that there is country information to support that the attacks remain a common occurrence, notwithstanding government forces being strong in Kabul, and that attacks often cause significant casualties amongst civilian bystanders, and that insurgent attacks in Kabul are up by 60 per cent in the same period in 2014 according to certain country information. Again, this is nothing more than identification of other country information before the Authority. It was for the Authority to determine whether the Authority accepted the country information that there was effective government control. That was a finding open to the Authority which cannot be said to be irrational or illogical. Further, the ability of the government to provide effective control was a matter subsumed within the Authority’s finding adverse to the applicant’s claim of his fear of collateral damage from insurgent groups.

2. The Authority’s reasons as summarised above reflect a logical and rational basis for the adverse finding. It cannot be said that there is a failure by the Authority to take into account government control in determining the applicant’s claim to fear harm from insurgent groups. Again, the fact that other country information might have permitted a different finding to be made does not identify in the present case legal unreasonableness or that the Authority’s reasons were illogical or irrational. There was no failure to consider an integer of the applicant’s claims as alleged in ground 1(b). No jurisdictional error as alleged in ground 1(b) is made out.

Ground 1(c)

1. In relation to ground 1(c), it is difficult to understand how counsel could have advanced that this was a finding that was not the subject of consideration by the Authority. It is apparent from the reasons of the Authority as summarised above, that the Authority considered and made adverse findings that were open to the Authority in relation to the applicant’s ability to subsist. Again, the reference to other country information by counsel for the applicant does not identify a basis upon which the finding of the Authority can be said to be illogical, irrational or unreasonable.

2. To the extent that it is suggested that the applicant might have returned to a government job, the Authority made an adverse finding in that regard that was open to the Authority. This was not a modification of behaviour, but rather a finding of fact open to the Authority. There was no failure to consider an integer of the applicant’s claims as alleged in ground 1(c). No jurisdictional error as alleged in ground 1(c) is made out.

Ground 2

1. In relation to ground 2, counsel was requested by the Court to provide particulars of what was said to be the certain parts of country information reports to support some of its findings as referred to in ground 2, and also to particularise what was said to be contradictory information. The Court was informed that the particulars were subsumed by the above matters identified in ground 1.

2. For the reasons earlier given, there is no substance in the submissions that the Authority engaged in any error of law in identifying the specific parts of the country information to which the Authority referred in the course of its reasons. Those references are not a basis upon which it can be inferred that the Authority did not take into account the whole of the country information. It was a matter for the Authority to determine what country information it accepted. It was not necessary for the Authority to openly deal with the other country information to which the Court was referred as the Authority’s reasons reveal a proper and meaningful consideration of the applicant’s claims

3. The references in the present case to which the Court was taken identify a disagreement with the adverse findings by the Authority and an invitation to this Court with substance to engage in impermissible merits review. No jurisdictional error as alleged in ground 2 is made out.

4. The further amended application is dismissed.

I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate:

Date:  9 April 2018