DPX17 v Minister for Immigration, Citizenship and Multicultural Affairs

[2022] FedCFamC2G 1005

Federal Circuit and Family Court of Australia

(DIVISION 2)

DPX17 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 1005  

File number(s):	SYG 2540 of 2017
Judgment of:	JUDGE OBRADOVIC
Date of judgment:	7 December 2022
Catchwords:	MIGRATION LAW – Application for judicial review – excluded fast track applicant – whether there is an error in reasons of the delegate – whether the applicant was an excluded fast track applicant – whether it is reasonable for the applicant to relocate – whether the applicant faced no chance of persecution – whether the applicant faced no real chance of harm – internal relocation – whether the delegate made an error in finding that the applicant’s wife could relocate – jurisdictional error established – delegate’s decision quashed.
Legislation:	Migration Act 1958 (Cth) ss. 5, 65.
Cases cited:	AOJ18 v Ministerfor Home Affairs [2018] FCAFC 220 BIG17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 223 DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2 FES17 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 1003 FMM17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 20 Hands v Minister for Immigration and Border Protection [2018] FCAFC 225 MZYPW v Minister for Immigration and Citizenship [2012] FCAFC 99 NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263 Navato v Minister for Home Affairs [2019] FCAFC 135 SZATV v Minister for Immigration and Citizenship [2007] HCA 40
Division:	Division 2 General Federal Law
Number of paragraphs:	60
Date of hearing:	2 August 2022
Place:	Parramatta
Counsel for the Applicant:	Mr Zipser
Solicitors for the Applicant:	Ryburn Solicitors
Counsel for the Respondent:	Mr Reilly
Solicitors for the Respondent:	HWL Ebsworth Lawyers

ORDERS

SYG 2540 of 2017

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

DPX17

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

Respondent

order made by:	JUDGE OBRADOVIC
DATE OF ORDER:	7 December 2022

THE COURT ORDERS THAT:

1.The name of the Respondent be amended to ‘Minister for Immigration, Citizenship and Multicultural Affairs’.

2.A writ of certiorari issue, quashing the decision of a delegate of the Respondent dated 18 July 2017 to refuse to grant the Applicant a subclass XE-790 Safe Haven Enterprise Visa.

3.A writ of mandamus issue, remitting the matter to the Respondent and requiring the Respondent to determine according to law the application pursuant to s.65 of the Migration Act 1958 (Cth).

4.A writ of prohibition issue, prohibiting the Respondent and his delegates, servants and agents from acting upon or giving effect to the decision of the Minister.

5.The Respondent pay the Applicant’s costs as agreed or assessed.

Note: The form of the order is subject to the entry in the Court’s records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

REASONS FOR JUDGMENT

JUDGE OBRADOVIC:

1. This is an application for judicial review of a decision of the respondent (“delegate”) dated 18 July 2017, not to grant the applicant a subclass XE-790 Safe Haven Enterprise Visa (“visa”) pursuant to s.65 Migration Act 1958 (Cth) (“the Act”).

   Background:

2. The applicant is a citizen of Afghanistan and is a Shia Muslim of the Hazara race.

3. The applicant previously sought asylum in the United Kingdom on 10 August 2006 and that application was refused on 18 September 2006. The applicant was then removed from the United Kingdom and returned to Afghanistan on 20 July 2010.

4. On 18 April 2013, the applicant arrived in Australia as an unauthorised maritime arrival. On 13 June 2013, the applicant had an Irregular Maritime Arrival Entry Interview (“entry interview”).

5. On 17 January 2017, the applicant made an application for a visa. The basis of this application was set out in the applicant’s statutory declaration dated 13 January 2017, and the written submissions of the applicant’s agent.

6. The applicant provided a supplementary statutory declaration dated 25 March 2017 to the delegate.

7. The delegate interviewed the applicant on 29 March 2017.

8. On 31 March 2017, the delegate provided the applicant an invitation to comment on whether the applicant was an “excluded fast track review applicant” pursuant to s.5(1)(a)(iii) of the Act. On 18 April 2017, the applicant’s agent provided submissions in response to this invitation.

9. On 18 July 2017, the delegate made a decision refusing the applicant’s visa pursuant to s.65 of the Act. The delegate also found that the applicant was an “excluded fast track review applicant” pursuant to s.5(1)(a)(iii).[1]

   [1] CB: 194

   Protection Claims

10. The applicant made a number of protection claims, including that he was in fear of being targeted and harmed by the Taliban and other insurgent groups, such as Daesh, in Afghanistan, due to the following:

    (a)His Hazara race;

    (b)His Shia Muslim faith;

    (c)His political opinons;

    (d)His father’s profile as a former fighter for Wahdat Political Party;

    (e)His father’s death by the Taliban in 2000, which occurred during conflict between his father’s troops and the Taliban;

    (f)His previous employment with the Red Cross in Afghanistan;

    (g)His previous work and assistance in political party campaigns for the candidate Shamaiel Nikzad Amiri (accredited by the Afghanistan Election Commission);

    (h)His profile if he was to return as a failed asylum seeker, who resided in Australia and the United Kingdom;

    (i)Instability in his home region of Ghazni province.

11. The applicant claims that people of the Hazara race were persecuted by the Taliban, where they can be abducted, tortured, and can be accused of being spies, infidels, and “Kafir”.[2]

    [2] CB: 102

12. The applicant also states that the main road to Ghazni City via Qarabagh is called the “road of death”. He goes on to claim that the “Taliban pull Hazara vehicles off the road every day and extort, bully and murder with impunity”.[3]

    [3] CB: 102

13. The applicant says that after moving back to Ghazni Province, upon the rejection of his asylum application by the United Kingdom in or around May 2009, he felt “constantly at risk due to having lived in a western country and working for red cross and for the independent electoral commission (sic)”.[4]

    [4] CB: 109

14. Further, the applicant states that whilst he was working at the Red Cross, he was informed by a Malistan village elder that they had received a threat against him. The applicant initially continued working with Red Cross after being informed of the threat, but left Red Cross one month later as he did “not feel safe”.[5]

    [5] CB: 182

    Delegate’s Decision

15. The delegate made a number of findings which are summarised as follows[6]:

    (a)That the applicant is of Hazara ethnicity and is a Shia Muslim, and that he is from the Ghazni province in Afghanistan;

    (b)The applicant assisted with political campaigns during the 2010 elections in Afghanistan;

    (c)The applicant was employed by the Red Cross whilst in Afghanistan and administered vaccines to children;

    (d)The applicant’s father was a former fighter for the Wahdat party and was killed by the Taliban while fighting for the Afghan government;

    (e)The applicant would be returning to Afghanistan from Australia as a failed asylum seeker who has resided in England and Australia;

    (f)The applicant fears being harmed in Afghanistan as a result of generalised violence.

    [6] CB: 183

16. The delegate accepted the applicant’s claims as credible, and furthermore accepted that there was more than a remote chance that the applicant could be seriously harmed if he travelled from Kabul to his home area of Ghanzi province. However, the delegate was not satisfied that the applicant had a well-founded fear of being seriously harmed and that he did not face a real chance of persecution in Mazar-e Sharif.[7]

    [7] CB: 189

17. The delegate found that it was reasonable for the applicant to relocate to Mazar-e Sharif.

18. Additionally, the delegate found that any potential adverse circumstances created by the applicant’s personal profile or his status as a retuning asylum seeker, could be alleviated by the applicant moving with his wife to Mazar-e Sharif.[8] 

    [8] CB: 193

19. The delegate further found that the applicant was an “excluded fast track review applicant” within the statutory definition, as he had made a claim for protection in a country other than Australia and was refused by that country.[9]

    [9] CB: 195

    Grounds of Judicial Review

20. The applicant relies on his further amended application filed 2 August 2022. The applicant’s grounds for judicial review are summarised as follows:

    (a)Ground 1:

    Not pressed.

    (b)Ground 2:

    Whether the delegate misconstrued the definition of “excluded fast track review applicant” pursuant to s 5(1) of the Act.

    (c)Ground 3:

    Not pressed.

    (d)Ground 4:

    Whether the delegate erred in finding that the applicant could relocate to Mazar-e Sharif.

    (e)Ground 5:

    Whether the delegate erred in not considering whether the applicant may resume working for government, or non-government, organisations.

    (f)Ground 6:

    Whether the delegate erred in finding that the applicant does not face a real chance of persecution in Mazar-e Sharif.

21. The respondent opposes the applicant’s application.

    Determination

    Ground 2: misconstruction of definition of “excluded fast track review applicant” vis-à-vis failed asylum seeker

22. The applicant argues that he is not an “excluded fast track review applicant” on the basis that the reference to a “claim for protection” in s.5(1)(iii) of the Act does not mean any claim for protection but rather a claim for protection which involves the same claims as made by the applicant. Secondly, the applicant argues that a claim for asylum is not the same as a “claim for protection”.

23. In FMM17[10] the appellant argued that “the words ‘a claim for protection’ used in the relevant category of exclusion mean a claim for protection that was based upon alleged facts that are materially the same as those relied upon as the basis for the claim subsequently made in Australia.”[11] It is an argument that is almost identical to the one argued on behalf of the applicant in these proceedings.

    [10] FMM17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 20 (“FMM17”)

    [11] FMM17 at [8]

24. In FMM17 the Full Court of the Federal Court of Australia held:

    [13]… Significantly, it is solely the nature of that previous claim that is used to identify the category of excluded applicant.  There is no language that invites some form of comparison with or connection to the application subsequently made in Australia. 

    …

    [17]… In the context of that group of definitions, if it was the case that the type of 'claim for protection' that brought a person within the exclusion was required to be a claim that had some type of connection with the application that made a person a fast track applicant (whether as to its factual basis or otherwise) then it would be expected that the excluded category would have been so expressed. [12]

    [12] FMM17 at [13] and [17]

25. The Court further noted with reference to the explanatory memoranda that:

    [19]…the Explanatory Memorandum stated (para 718):

    This provision captures those fast track applicants who have had their asylum claims assessed and refused in a third country and have now received a further assessment and refusal under Australia's protection visa framework. [13]

    [13] FMM17 at [19]

26. At [34] the Court held:

    It follows that the statutory construction contended for by the Minister (being that adopted by the delegate) [namely: the fact that a person has made an unsuccessful previous claim to protection in another country brings a person within the definition.  It is not necessary to show that there was some connection or commonality as between the previous claim and the claim made in Australia see [5]] is the correct construction of the words used. [14]

    [14] FMM17 at [34]

27. In coming to this conclusion, the Court in FMM17 specifically considered the scenario of an applicant applying for a protection visa in Australia many years after and for very different reasons to the earlier claim for protection made in another country. The Court nevertheless went on to hold that “The provision might be characterised by some as harsh or extreme in its consequences, but it would remain an exception that might be justified by the stated purpose”.[15]

    [15] FMM17 at [31]

28. The Court is bound by a decision of the Full Court of the Federal Court of Australia. So much was conceded by the applicant’s counsel, noting that the ground was nonetheless formally pressed.

29. Ground 2 is therefore not made out.

    Ground 4 – internal relocation

30. The applicant argues that the delegate’s finding that it would be reasonable for the applicant to relocate to Mazar-e Sharif involved jurisdictional error.

31. Firstly, it is argued that the delegate overlooked an issue in assessing the applicant’s claim, and secondly it is argued that the delegate’s finding that it would be reasonable for the applicant to relocate to Mazar-e Sharif with his wife was irrational in circumstances where the delegate did not explain how the wife could safely get to Mazar-e Sharif, or if she could not, why it was then reasonable for her to travel to Mazar-e Sharif.

32. It is well recognised that,

    [80] [I]nternal relocation will not be a reasonable option if there are logistical or safety impediments to gaining access to the separate part of national territory that is suggested as a safe haven…

    [81] In some circumstances, having regard to the age of the applicant the absence of family networks or other local support, the hypothesis of internal relocation may prove unreasonable … In each case, the personal circumstances of the applicant… the viability of the propounded place of internal relocation … and the support mechanisms available if an applicant has already been traumatised by actual or feared persecution … will need to be weighed in judging the realism of the hypothesis of internal relocation. [16]

    [16] SZATV v Minister for Immigration and Citizenship [2007] HCA 40 at [80]-[81]

33. The finding that the applicant could safely relocate to Mazar-e Sharif was a critical finding to the delegate’s overall determination not to grant the applicant the visa.

34. The obligation to consider a matter requires the decision maker to bring his/her mind to bear upon the matter and to engage in an active intellectual process directed at that matter.[17] As stated by the Full Court of the Federal Court:

    [T]he determination of whether the decision-maker has given active intellectual consideration to a representation will frequently be a matter of impression reached in light of all of the circumstances of the case. [18]

    [17] BIG17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 223 at [31] (“BIG17”)

    [18] Navato v Minister for Home Affairs [2019] FCAFC 135 at [89]

35. In assessing whether relocation to Mazar-e Sharif is reasonable, the delegate was alive to the issue of needing to assess the applicant’s personal circumstances “together with UNHCRs advice that internal relocation is reasonable only where the individual can expect to benefit from meaningful support of his or her own extended family, or member of his or her larger ethnic community…who have been assessed to be willing and able to provide genuine support to the applicant in practice”.[19]

    [19] CB: 190

36. The delegate found that the applicant is married, that he and his wife presumably want to try again to have a child, that the wife presumably continues to live in the Ghanzi province (although other evidence before the delegate suggested she was in Pakistan) and that she is also presumably a Hazara Shia. The delegate recognised that the applicant had no familial connections to Mazar-e Sharif.[20]

    [20] CB: 191

37. Given that internal relocation to Mazar-e Sharif by the delegate was considered reasonable in the sense that it was practicable, the delegate was obliged to conduct an assessment of the applicant’s actual circumstances, including his family networks if he was to relocate.

38. The delegate asserts that “it would be reasonable… for the applicant to relocate to Mazar-e Sharif with his wife given his personal profile and the environment in which returnees to Afghanistan are supported”.[21] This is the first time the delegate refers to the applicant’s wife in considering the issue of relocation.

    [21] CB: 193

39. The delegate found that road to travel in and out of the Ghanzi province, based on country information, carried with it more than a remote chance that Hazara Shias would be seriously harmed.[22]

    [22] CB: 185

40. The delegate did not address how the applicant’s wife could safely travel and/or relocate to Mazar-e Sharif (either from Ghanzi province or from Pakistan).

41. The applicant did not raise any express objection to the delegate concerning the hardship that his wife might face if she relocated to Mazar-e Sharif. Although there was no submission made to the delegate in relation to the applicant’s wife as such, it is apparent that the delegate considered that this was a significant matter that clearly arose on the material before her which required consideration.[23]

    [23] NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263 at [60] (“NABE”)

42. An assertion by the delegate that the applicant’s wife can relocate to Mazar-e Sharif without explaining how, and the extent to which the relocation would involve risks of serious harm to the wife, is in the circumstances insufficient. Although the delegate stated that she was confident the wife could relocate, it does not appear that she gave any consideration to the difficulties that would be faced by the wife, or indeed that may be encountered by the applicant, even if he had been able to establish himself in Mazer-e Sharif, in accommodating and providing for his wife and whether she could safely get to Mazar-e Sharif or safely live there.[24]

    [24] See BIG17 at [42] where the Court found similar shortcomings of the Immigration Assessment Authority.

43. These matters do not appear to have been considered by the delegate even though they were central to the question of whether the applicant’s wife could eventually join him in Mazar-e Sharif.

44. Furthermore, the delegate did not articulate how the applicant himself could safely access Mazar-e Sharif.[25]

    [25] The facts of this case are substantially similar to the facts in FES17 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 1003 (“FES17”). In FES17 the Court found that a jurisdictional error had been made by the Authority due to it having no evidence before it in order to make a finding that the applicant in that case would be able to safely relocate to Mazar-e Sharif. The Court notes that this point was not raised by the applicant in this case as a possible jurisdictional error made by the delegate and as such was not dealt with by the Court.

45. Therefore, the finding that the applicant could relocate with his wife to Mazer-e Sharif, was a finding that was irrational or illogical in a manner involving jurisdictional error. Furthermore, there was no rational or probative evidence to support the finding.[26]

    [26] Hands v Minister for Immigration and Border Protection [2018] FCAFC 225 at [44]-[47]; DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2 at [30(2)]; AOJ18 v Minister for Home Affairs [2018] FCAFC 220 at [31]

1. The error by the delegate was material.

2. Ground 4 is therefore made out.

   Ground 5 – failure to consider whether applicant may resume particular type of work

3. The applicant claims that the delegate erred by not considering whether the applicant would engage in similar work as he had in the past for the Red Cross and for the Independent Electoral Commission (“IEC”), and be harmed as a result.

4. The delegate was only bound to deal with the application before it, even one which may not have been clearly articulated by an applicant, but which arises on the basis of evidence and material before it.[27] It is well accepted that such an unarticulated claim must be raised squarely on the material before the delegate.[28]

   [27] NABE at [58]

   [28] NABE at [68]

5. The applicant, at its highest, indicated that he would consider engaging in similar work as he had in the past, however, he did not make any express claim that he would do so and that consequently he would be harmed. Furthermore, no such unarticulated claim arises on the material.

6. The delegate noted that the applicant had worked as a mechanic in Afghanistan and an auto dismantler in Australia, and considered those were transferrable skills and that the applicant would be able to find employment in Mazar-e Sharif.

7. While the applicant has made very detailed oral and written submissions in this regard, the Court does not accept that it was a necessary question for the delegate to ask herself whether the applicant would undertake similar work to the work he undertook for the IEC and Red Cross and if so, whether he would face a risk of harm as a result, because the applicant never made a claim that he would do so and consequently be harmed.

8. In any event, the delegate found that the applicant did not face a real chance of harm for his past work with the Red Cross.[29]

   [29] CB: 189

9. Ground 5 is therefore not made out.

   Ground 6 – real risk of harm

10. The applicant argues that the delegate erred in finding that the applicant did not face a real chance of harm in Mazar-e Sharif.

11. The delegate accepted a Taliban attack on the Afghan National Army in Mazar-e Sharif in April 2017, but then went on to explain why she did not consider the applicant’s profile would lead him to being subjected to such harm. The delegate went on to conclude that Hazaras were in the same position as other civilians in Mazar-e Sharif. Contrary to the once again, detailed oral and written submissions of the applicant, the Court does not accept that the delegate made conflicting findings and then failed to reconcile them.

12. The applicant in reality argues with the delegate’s reasons, and while reasonable minds may differ on the conclusion reached, it is not illogical or irrational in the requisite sense of jurisdictional error.

13. Ground 6 is therefore not made out.

    conclusion

14. For all of those reasons, orders as set out at the forefront of these Reasons for Judgment will be made, including that the Minister must pay the applicant’s costs of the proceedings.

15. If the Court is wrong about the jurisdictional error being made out, the Court asks that the Minister exercise his discretion in the circumstances of this matter.

61          I certify that the preceding sixty (60) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Obradovic.

Associate:

Dated: 7 December 2022