DPV18 v Minister for Immigration
[2020] FCCA 2474
•4 September 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DPV18 v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 2474 |
| Catchwords: MIGRATION – Application for judicial review – Safe Haven Enterprise Visa – Immigration Assessment Authority – no matters of principle – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.36(2), 91X and 473DE |
| Cases cited: AJZ17 v Minister for Immigration and Anor [2019] FCA 1485 AVN20 v Federal Circuit Court of Australia [2020] FCA 184 CRU18 v Minister for Home Affairs [2020] FCAFC 129 |
| Applicant: | DPV18 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | LNG 138 of 2019 |
| Judgment of: | Judge Riethmuller |
| Hearing date: | 9 June 2020 |
| Date of Last Submission: | 9 June 2020 |
| Delivered at: | Melbourne |
| Delivered on: | 4 September 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr Barnes |
| Solicitors for the Applicant: | Refugee Legal Service Tas Inc |
| Counsel for the First Respondent: | Mr Ciolek |
| Solicitors for the First Respondent: | Australian Government Solicitor |
ORDERS
The application be dismissed.
The Applicant pay the First Respondent’s costs fixed in the sum of $7,467.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT LAUNCESTON |
LNG 138 of 2019
| DPV18 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Overview
The applicant seeks judicial review of a decision of the Immigration Assessment Authority (‘IAA’) affirming a decision by a delegate of the Minister to refuse to grant him a Safe Have Enterprise Visa (‘protection visa’) dated 21 November 2019.
Background
The applicant is a citizen of Afghanistan who arrived in Australia on 19 July 2013 as an unauthorised maritime arrival. He applied for the protection visa on 22 December 2016. The applicant was invited to an interview with the delegate, and attended that interview on 19 July 2017 with a migration agent.
The delegate refused to grant the visa on 16 August 2017. The matter was referred to the IAA on 21 August 2017. The applicant made a submission for the review, as well as filing supporting documents on 11 September 2017. The IAA delivered a decision on 13 June 2018.
The first IAA decision was quashed by a Federal Circuit Court decision and remitted back to the IAA. The applicant provided the IAA with more supporting documents on 1 November 2019.
On 21 November 2019 the IAA again affirmed the delegate’s decision not to grant a protection visa.
The applicant’s claims
The applicant says that he is a Shiá Hazara, from a village in the Wardak region of Afghanistan. He says that when he was 14 or 15 years of age, his father was shot and killed by Kuchi nomads whilst taking food to other Hazaras who were protecting the village. He says that his mother passed away six months to a year later. After that the applicant said that he went to live with his father’s best friend, who later supported him in his decision to leave Afghanistan and to obtain a passport in Kabul. The applicant left Afghanistan in April 2013.
The applicant said that he initially travelled to India, then Malaysia and then Indonesia. From Indonesia he embarked upon a journey to Australia by boat, and was intercepted by the Australian Navy at sea and taken to Christmas Island. He arrived Christmas Island in July 2013.
The grounds upon which the applicant sought protection are summarised in the applicant’s written submissions filed 25 May 2020 as follows (at paragraphs [23], [25]-[27]):
23. The Applicant decided to leave Afghanistan because he constantly felt that he would be the next to die and there was nobody to protect him.
…
25. If the Applicant is returned to his home area he will be killed by the Taliban, Kuchi or Islamic State. The Kuchi will kill him because the land disputes are still occurring. The Taliban and Islamic State will kill him because he is Shiá and Hazara.
26. The Applicant has no family in Afghanistan and will be all alone. He will not be able to find or afford accommodation, and without a job would have no way of getting food. He will die if he is returned.
27. The Applicant’s mental health is such that he is at risk of serious harm if returned
Importantly, the applicant provided two professional reports and country information to the IAA prior to the decision, conveniently summarised by Counsel for the Minister in the written submissions filed 26 May 2020 (at paragraphs [17.1]-[17.3]) as follows: (
17.1. a report dated 29 October 2019 from Ms Abi Byrne, a counsellor at the Phoenix Centre (CB 702) in which she expressed the belief that if the applicant ‘were to return to Afghanistan where there is limited support and access to psychological care … [his] mental health will continue to deteriorate and he would be unable to sustain himself’
17.2. a report dated 4 November 2019 from Ms Alison Dugan, his case worker at the Red Cross (CB 712) in which she says that the applicant’s mental health ‘has deteriorated in recent years’ and expressed concern about any return by the applicant to Afghanistan as ‘a country without adequate mental health facilities’
17.3. country information which, he submitted, ‘specifically addresses the adequacy or otherwise of mental health support services as raised in the letter provided by Ms Dugan.’.’
IAA’s findings
The IAA noted that the delegate had accepted that the applicant was at real risk of harm in his home village, but had found that he could relocate to Kabul, saying (at paragraph [4]):
4. The delegate accepted the applicant’s claims as to identity and origin. The delegate accepted that the applicant faced a real chance of harm in [his home village] but found that he could relocate to Kabul where he did not face a real chance or real risk of relevant harm, and that it would be reasonable for him to do so.
The IAA was careful to provide the applicant with an opportunity to comment on this information (even though not bound to do so under s.473DE of the Migration Act 1958 (Cth) before making the decision: see paragraph [18].
The IAA accepted that the applicant, if returned to Afghanistan, was likely to return to his home region where he had spent his entire life whilst living in Afghanistan: see paragraphs [22]-[25].
The IAA however was not satisfied that he was at risk of harm from nomadic tribes, including the Kuchis, saying (at paragraphs [28]-[30]):
28. The applicant claims to be a Shi’a and a Hazara. I accept that the applicant has what I understand to be a distinct visual appearance that will identify or impute him as a Hazara. I note that inter-tribal violence between the Kuchi nomads and Hazara landowners is continuing and information before me refers to Wardak as one of the provinces most affected by ongoing nomad-settler disputes. It also reports that both sides have sought the support of state authorities in some cases, or anti-government elements (AGE) in others [FN: omitted].
29. The applicant does not own land in Wardak. He has not said that he has any claim over land, or that he would seek to assert any claim over land, in Wardak. His evidence is that the family land was sold by R, who used some of the funds to assist the applicant’s travel to Australia. I am not satisfied that the applicant faces a real chance of harm from the Kuchi nomads as a landowner or from land disputes. However, I take into account the information before me that violence is not necessarily limited to those who own, or who are working on disputed land. I also cannot discount the possibility that the applicant may settle on, or be required to work on, land that is the subject of dispute. I also note that the Hazara population has formed protection groups which have come into conflict with the Kuchis and accept the submission that any Hazaras in a disputed area may be imputed by Kuchis as being supportive of a Hazara militia. I accept that the applicant may be identified as a Hazara but I must also consider whether, taking all of the above into account, he faces a real chance of serious harm.
30. Information before me refers to two incidents of Hazaras being abducted in Wardak in 2015, and seven more in 2016. These incidents were said to be related to land disputes but neither of these incidents were reported to have resulted in fatalities [FN: omitted]. I have considered all of the new information provided by the applicant and while there are reports of violence in Wardak (considered further below), there are no reports of any serious incidents arising from nomad-settler violence since 2016. While I acknowledge that not all such incidents are likely to be reported, I consider that if there were ongoing serious incidents between Kuchis and Hazaras, this would be at least mentioned in some reporting. The lack of any such reporting (in the context of substantial reporting on other incidents) indicates that serious inter-tribal incidents are not frequent or systematic. Having regard to all of this, I am not satisfied that the applicant faces any more than a remote chance of harm from nomadic tribes including the Kuchis.
The IAA concluded that the applicant could return to his home region without a real chance or real risk of significant harm. In coming to this conclusion, the IAA relied upon more recent country information than was available to the delegate: see paragraphs [41], [51], and [53] of the decision.
The IAA did not accept that the applicant was at risk as a result of his religion or ethnicity (at paragraph [53]), nor as a failed asylum seeker who had been to the West: see paragraph [70].
The IAA also considered the applicant’s mental health and did not accept that it would lead to a real risk of serious harm.
Application for Judicial Review
The original application filed in December 2019 set out two grounds. The Amended Application filed in May 2020 abandoned ground 2, and amended ground 1 as follows:
1. The Authority failed to conduct its review pursuant to s. 473CC of the Migration Act, according to law in that it failed to consider claims or integers of claims.
Particulars
a. The Authority had evidence before him in the form of a report from a counsellor that stated the Applicant’s mental health will continue to deteriorate and that he would be unable to sustain himself if returned to Afghanistan;
b. The IAA erred in failing to evaluate an integer of the applicant's claims for protection under section 36(2)(a) of the Act, namely that there was a real chance of ‘serious’ harm in the “distress or difficulties the applicant may face accessing health care, or the environment to which he would be returned”: CB 737 [75].
The IAA specifically considered the reports from the two counsellors in some detail, saying (at paragraphs [55]-[56]):
55. The counsellor notes that:
•On 26 March 2019, the applicant reported difficulties with maintaining study and work due to sleep disturbances (nightmares, difficulties sleeping), stress, feelings of anger and anxiety, along with other symptoms consistent with presentation of Post-Traumatic Stress Disorder and Depression. It was recommended that he seek medical advice regarding recommencement of anti-depressant medication, in addition to trauma-informed counselling. The applicant reported difficulties accessing a general practitioner (GP).
•On 12 June 2019, the applicant reported an increase in symptoms previously detailed. He described feeling overwhelmed “by everything” and reported feelings of anger which had increased in intensity and frequency over the previous three months. He reported increased stress and difficulties with maintaining study (failing exams, poor attendance and incomplete assignments).
•On 24 July 2019, the applicant reported thoughts of self-harm, suicidal ideation and risk-taking behaviours. The counsellor observed changes in presentation and engagement (low affect, inability to focus and engage in counselling). A suicide risk assessment was completed and he was assessed as being at high risk.
•On 30 October 2019, the applicant presented for counselling and was observed to be in an agitated state (difficulty sitting still, elevated voice). He described difficulties with taking anti-depressant medication. The counsellor states that the reasons are consistent with feelings of extreme hopelessness. The applicant reported feelings of exhaustion from living in fear of being returned, he stated he is most fearful of death if returned to Afghanistan and described reasons that the counsellor believes are consistent with heightened vulnerability.
•He was observed as displaying limited affect and unable to engage in strategies to mitigate anxiety and stress. He expressed statements of extreme emotional distress, sense of hopelessness and suicidal ideation. The counsellor notes that this decline in mental health aligns with a final court hearing on 26 July 2019 as well as his reports of increased uncertainty of his future and fear of returning to Afghanistan. The counsellor notes that the applicant had previously demonstrated resilience, ingenuity and strength of character which enabled him to work hard to support himself and others around him. However, the stress associated with visa uncertainty and fear of returning to Afghanistan has significantly compromised his trauma recovery and chance to restore safety, connection and meaning in his life. The counsellor concludes that “[i]t is evident the manifestations of his chronic trauma symptoms compromise his ability to engage in study, employment and meaningful relationships and activities. However with the strong support network and access to specialist treatment available in Australia, there is hope for recovery.” The counsellor believes that if the applicant was to return to Afghanistan where there is limited support and access to psychological care, his mental health will continue to deteriorate and he would be unable to sustain himself.
•He was observed as displaying limited affect and unable to engage in strategies to mitigate anxiety and stress. He expressed statements of extreme emotional distress, sense of hopelessness and suicidal ideation. The counsellor notes that this decline in mental health aligns with a final court hearing on 26 July 2019 as well as his reports of increased uncertainty of his future and fear of returning to Afghanistan. The counsellor notes that the applicant had previously demonstrated resilience, ingenuity and strength of character which enabled him to work hard to support himself and others around him. However, the stress associated with visa uncertainty and fear of returning to Afghanistan has significantly compromised his trauma recovery and chance to restore safety, connection and meaning in his life. The counsellor concludes that “[i]t is evident the manifestations of his chronic trauma symptoms compromise his ability to engage in study, employment and meaningful relationships and activities. However with the strong support network and access to specialist treatment available in Australia, there is hope for recovery.” The counsellor believes that if the applicant was to return to Afghanistan where there is limited support and access to psychological care, his mental health will continue to deteriorate and he would be unable to sustain himself.
56. The counsellor’s observations and concerns are supported by a letter from a senior case worker with the Red Cross Migration Support Team, dated 4 November 2019.
The relevant part of the IAA decision with respect to this ground is paragraph [75], where the IAA says:
75. The applicant has provided evidence relating to a claimed deterioration in his mental health. I have referred above to country information about the provision of mental health care in Afghanistan and the difficulties that some people face in accessing such care. I accept that the applicant is fearful of returning to Afghanistan. I also accept that his symptoms and conditions may be exacerbated to a degree by a return to Afghanistan. However, I am not satisfied on the evidence before me that his mental health would deteriorate to such a degree that he would be unable to conduct himself in Afghanistan or would draw adverse attention to him for that reason. While I accept that he may suffer mental health issues, I am not satisfied that his health conditions and any distress or difficulties he may face accessing health care, or the environment to which he would be returned would, individually or cumulatively, lead him to be arbitrarily deprived of his life, having the death penalty applied, or being tortured. The information before me does not indicate that any distress or difficulties would arise from any intention by any person to inflict pain or suffering, or severe pain or suffering or to cause extreme humiliation. I am not satisfied that the applicant faces a real risk of significant harm arising from his mental health.
(Emphasis added)
The applicant framed the argument on the basis that the case is similar to that in AJZ17 v Minister for Immigration and Anor [2019] FCA 1485 (‘AJZ17’). To the extent that AJZ17 doubted the need for a nexus of intentionality in favour of a ‘predicament approach’ (AJZ17 at [55]), it has not been approved. In CRU18 v Minister for Home Affairs [2020] FCAFC 129, the Full Court said:
46. … we are not convinced that the IAA’s approach to the nexus question was wrong. Although there are authorities that appear to lend some support to the submission that the appellant advanced in that regard—in particular, AJZ17 v Minister for Home Affairs [2019] FCA 1485, [55] (Moshinsky J) and NACM of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1554, [50] (Madgwick J)—the weight of authority very strongly tends the other way: Applicant A v Minister for Immigration (1997) 190 CLR 225, 242 (Dawson J), 257 (McHugh J), 284 (Gummow J); Chen Shi Hai v Minister for Immigration (2000) 201 CLR 293, 304[33]-[34] (Gleeson CJ, Gaudron, Gummow and Hayne JJ); Ram v Minister for Immigration (1995) 57 FCR 565, 568 (Burchett J, with whom O’Loughlin and Nicholson JJ agreed); Perampalam v Minister for Immigration (1999) 84 FCR 274, 282-283[16] (Burchett and Lee JJ), [30]-[31] (Moore J); Minister for Immigration v Applicant Z (2001) 116 FCR 36, 43-44[27] (Keifel J, with whom Hely J agreed; Sackville J agreeing in the result); Minister for Immigration v VFAY [2003] FCAFC 191, [49]-[50] (French, Sackville and Hely JJ); SZTEQ v Minister for Immigration (2015) 229 FCR 497, 516[72] (Robertson, Griffiths and Mortimer JJ).
Counsel for the applicant argues that the reasoning in paragraph [75] of the IAA decision indicates that the IAA considered this part of the claim only on the basis of whether the distress or difficulties the applicant may face ‘would arise from any intention by any person’. It is argued that there is not a need for a specific intention by any person to cause harm to the applicant for the operation of s.36(2)(aa) of the Act. Thus, it is argued, the IAA did not consider the applicant’s claim of potential harm as a result of his mental health in circumstances where it was not the result of an intention of a particular person to cause harm and therefore within the ambit of s.36(2)(a) of the Act. The applicant also argues that the IAA failed to determine the extent of the ‘distress or difficulties’ that the applicant may confront, and that it was necessary for it to do so in order to properly assess this claim.
In AJZ17, the applicant (who came from Kenya) suffered a mental illness and claimed that in Kenya, the consequence for the mentally ill was “locking someone away or tying someone up because it was the only known way to deal with mental illness”: see AJZ17 at [59]. In AJZ17, it was held that the applicant failed under the complimentary protection provisions of s.36(2)(aa) of the Act on the basis that there was no intention to inflict harm. Moshinsky J (at paragraph [61] noted that there was evidence that:
… because of stigma from relatives and friends who view the illness as a curse and a bad omen, many societies tie up those suffering from mental illness for years at a time, often leading to deeper psychological trauma.
His Honour then concluded that (at paragraph [63]):
63. The Minister also submits that the appellant fails to identify how such a claim had any requisite Convention nexus necessitating the Tribunal to engage in consideration of this claim under s 36(2)(a). However, in my view it was open to the Tribunal to conclude that the actions of the appellant’s relatives and friends, as private actors, could rise to the level of persecution if public actors failed to prevent the harm for discriminatory reasons: see, eg, Minister for Immigration and Multicultural Affairs v Khawar (2002) 210 CLR 1 at [26], [30]- [31].
In the present proceedings, however, the IAA did separately consider the applicant’s claim under the Convention provision, s.36(2)(a) of the Act, and concluded (at paragraph [61]):
61. While I accept that the Afghan health system, and in particular the mental health system, is facing significant challenges including high numbers of sufferers, lack of facilities and resources, lack of knowledge and understanding of treatment options, and attacks on health workers and some regional hospitals and clinics, the information does not indicate that persons are denied access to, or are otherwise unable to access, mental health care on the grounds of race, religion, nationality, membership of a particular social group or political opinion. Rather, the information before me indicates that people are facing difficulties as a result of other factors such as previous and current conflict, damaged infrastructure and a lack of resources, staff and public education. Having regard to all of this information, I am not satisfied that the applicant has a well-founded fear of persecution arising from his mental health.
(Emphasis added)
It is not necessary for the IAA to make a precise finding as to the applicant’s state of health, rather to consider it against the standard set out in the legislation. The IAA did consider the evidence against the relevant standard.
Counsel for the applicant has not pointed to any material to indicate that the claim, as considered under the Convention provisions, has a separate integer to that considered by the IAA: for example, a claim in the nature of that articulated by Moshinsky J in AJZ17 that the applicant may suffer harm for a Convention reason from his friends and relatives unwittingly believing that they are treating him appropriately.
Sadly, on the facts of the present case, the applicant did not suggest that he had friends or relatives, as is apparent from the IAA’s consideration of the applicant’s capacity to subsist when the IAA said (at paragraphs [24],[51]-[52]):
24. The applicant claimed that his parents are now deceased and that the family home and store have been sold. He also said that he heard that his village is completely abandoned. He said that he has no friends or contacts in his home area. When the delegate asked about going to Kabul the applicant made repeated comments about his fear relating to the security and economic conditions there, particularly for Shi’a Hazaras.
[…]
51. I have considered the applicant’s submissions and personal circumstances, noting that he would be returning to an area where he has no accommodation or employment and would need to arrange this. I also note that he left [his home village] when he was about 17 and has been away for six years, and that he has no family or connections there. He has not claimed, and the evidence before me does not indicate, that he has any connections with the government or international community. I accept that if he returns to [his home village] he will need to do so by road and that he may be stopped at checkpoints along the way. The information that I have referred to above does not contain any recent reports of kidnappings, killings or other harm being targeted at Hazaras travelling to, from or within [his home village] by road. While I cannot discount the possibility of the applicant being stopped and harmed at checkpoints, I am not satisfied on the evidence before me that this is currently any more than a remote chance and there are no indications that this may change or deteriorate in the reasonably foreseeable future. I am not satisfied that the applicant faces a real chance of harm on the road to, or the roads in and around [his home village] and the Hazarajat. I am not satisfied that he would be prevented from travelling to or within [his home village] or the broader Hazarajat, including in order to access employment or services, or that he would be compelled to stay at home and thus be deprived of a means of subsistence.
52. More broadly, I accept that the applicant has never lived independently in Afghanistan and that he left his home area at a young age. However, he nevertheless spent all of his formative years in the one area, identifies as a Shi’a and a Hazara from that area, and he participated in interviews in Australia in Hazaragi without any apparent difficulties with that language. While I accept that life in [his home village] may be more challenging than his life in Australia, I am not satisfied on the evidence before me that the applicant will be unable to return and reintegrate into the Shi’a Hazara community there.
Accordingly, this ground cannot be made out.
Additional matter
This is a matter which the Court identified may have been affected by a data breach on the Commonwealth Courts Portal through Federal Law Search contrary to s.91X of the Act. The applicant was notified of the possible breach by letter dated 25 May 2020. The issue was not raised in written submissions by either party, nor at the hearing in June 2020 before me. For the reasons set out by Kenny J in AVN20 v Federal Circuit Court of Australia [2020] FCA 184, I do not consider the potential breach raises any arguable claim by the applicant.
Conclusion
I am not persuaded that the applicant has established a judicially reviewable error in this matter. I therefore make orders dismissing the application.
It was agreed that costs would follow the event at the scale fee of $7,467. I will order accordingly.
I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller
Associate:
Date: 4 September 2020
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