DQA17 v Minister for Home Affairs

Case [2020] FCA 864

FEDERAL COURT OF AUSTRALIA

DQA17 v Minister for Home Affairs [2020] FCA 864

Appeal from: DQA17 v Minister for Immigration & Anor [2018] FCCA 2418
File number(s): WAD 439 of 2018
Judge(s): GREENWOOD J
Date of judgment: 19 June 2020
Catchwords:

MIGRATION – consideration of whether the Immigration Assessment Authority (“IAA”) engaged in jurisdictional error in concluding that the appellant is not a person to whom Australia owes protection obligations under s 36(2)(aa) of the Migration Act 1958 (Cth) (the “Act”) – consideration of the way in which the claims under s 36(2)(a) and s 36(2)(aa) were framed – consideration of the principle of reasonable internal relocation as developed in the authorities in considering claims made under the Refugees Convention as amended by the Refugees Protocol – consideration of that principle in the context of s 5J(1)(c) of the Act and whether those principles apply under the codified regime – consideration of the extent to which that subsection comprehends a risk of harm in a place of relocation less than a real chance of serious harm

MIGRATION – consideration of the extent to which an assessment of reasonableness for the purposes of s 36(2B)(a) in a claim under s 36(2)(aa) engages a consideration of a risk of harm or lack of safety in a proposed place of relocation where the harm is something other than “significant harm” for the purposes of s 36(2A) of the Act – consideration of the observations of Kiefel CJ, Gageler and Nettle JJ in CRI026 v The Republic of Nauru (2018) 92 ALJR 529; 355 ALR 216 that authorities derived from the international jurisprudence in relation to international treaties are “unhelpful in interpreting the codified regime of complementary protection provided for in the [Act]” – consideration of the observations of Gordon and Edelman JJ in CRI028 v The Republic of Nauru (2018) 92 ALJR 568; 356 ALR 50 – consideration of the factors falling within the notion of “reasonableness” for the purposes of s 36(2B)(a) of the Act – consideration of the observations of the Full Court in CIT17 v Minister for Immigration and Border Protection [2018] FCAFC 150; Minister for Immigration and Border Protection v DZU16 [2018] FCAFC 32; DFE16 v Minister for Immigration and Border Protection (2018) 265 FCR 57; FCS17 v Minister for Home Affairs [2020] FCAFC 68; GLD18 v Minister for Home Affairs [2020] FCAFC 2; and other authorities

Legislation: Migration Act 1958 (Cth), ss 5H(1)(a), 5J, 36(2)(a), 36(2)(aa), 36(2A), 36(2B)(a)
Cases cited:

BJI17 v Minister for Home Affairs [2020] FCAFC 58

CIT17 v Minister for Immigration and Border Protection [2018] FCAFC 150

CRI026 v The Republic of Nauru (2018) 92 ALJR 529; 355 ALR 216

CRI028 v The Republic of Nauru (2018) 92 ALJR 568; 356 ALR 50

DFE16 v Minister for Immigration and Border Protection (2018) 265 FCR 57

FCS17 v Minister for Home Affairs [2020] FCAFC 68

GLD18 v Minister for Home Affairs [2020] FCAFC 2

Januzi v Secretary of State…

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AGLC
DQA17 v Minister for Home Affairs [2020] FCA 864
Case
[2020] FCA 864
Decision Date

CaseChat Overview and Summary

In the matter of DQA17 v Minister for Home Affairs, the appellant, a citizen of Afghanistan, sought review of a decision made by the Immigration Assessment Authority (IAA) which concluded that the appellant was not a person to whom Australia owed protection obligations under section 36(2)(aa) of the Migration Act 1958 (Cth) (the "Act"). The IAA's decision was predicated on its finding that it would be reasonable for the appellant to relocate to Kabul within Afghanistan, where there would not be a real risk that the appellant would suffer significant harm. The central legal issue before the court was whether the IAA engaged in jurisdictional error in its consideration of the appellant's claim under section 36(2)(aa) of the Act, specifically in determining the reasonableness of relocation to Kabul.

The court examined the IAA's approach to the principle of reasonable internal relocation, drawing upon the principle developed in the authorities concerning claims made under the Refugees Convention as amended by the Refugees Protocol. The court considered whether these principles apply under the codified regime of the Act, particularly in the context of section 5J(1)(c) and whether those principles comprehend a risk of harm in a place of relocation less than a real chance of serious harm. The court also considered whether an assessment of reasonableness under section 36(2B)(a) engages a consideration of a risk of harm or lack of safety in a proposed place of relocation where the harm is something other than "significant harm" for the purposes of section 36(2A) of the Act. The court acknowledged the observations of the Full Court in several precedent cases and the comments of Kiefel CJ, Gageler and Nettle JJ in CRI026 v The Republic of Nauru that authorities derived from international jurisprudence are unhelpful in interpreting the codified regime of complementary protection provided for in the Act.

The court concluded that the IAA had taken into account the appellant's specific circumstances and vulnerabilities, including the traumatic event of his father's murder, but found no evidence indicating that the appellant would face particular risks upon return to Kabul. The IAA's conclusion that it would be reasonable for the appellant to relocate to Kabul was open and did not constitute a failure to have regard to the appellant's specific circumstances or vulnerabilities. The court held that the IAA's decision was not vitiated by jurisdictional error and dismissed the appeal.

The final orders of the court were to grant leave to amend the notice of appeal, dismiss the appeal, and order the appellant to pay the first respondent's costs of and incidental to the appeal.

Orders

Orders of the court

1. Leave to amend the notice of appeal is granted.

2. The appeal is dismissed.

3. The appellant pay the first respondent’s costs of and incidental to the appeal.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Seventh, although the appellant and his family experienced a shocking tragedy when his father was killed, there is no evidence to indicate specific risks to the appellant upon return to Kabul. It is too speculative to conclude that any impact on the appellant’s psychological state or mental health would lead to a risk of harm. The appellant has demonstrated resilience in living abroad and there is not a real chance that his mental health will deteriorate or that he will require treatment not available in Kabul: IAA at [40]. In relation to this passage, the Court took counsel for the appellant to the passage of the IAA’s reasons earlier mentioned in these reasons, and set out below:However, no further information about his specific circumstances and vulnerability has been provided. I acknowledge the applicant and his family experienced a shocking tragedy but there is no evidence before me indicating that the applicant would face particular risks upon return. [emphasis added] The Court asked counsel for the appellant whether those observations of the IAA reflected a fair statement of the position about the state of the evidence before the IAA in relation to the specific circumstances and vulnerabilities of the appellant. Counsel for the appellant accepted that it as a fair statement of the position and made these remarks: But … what I’m relying on is that there was a finding that the murder of his father had been traumatic … and had been significant in his … life, and that there was … no finding, as far as I can see … as to whether or not he did fear the Taliban or any other insurgent group, and that, in my submission, is significant when it comes to the question of relocation. So no, there wasn’t a psychological report or anything like that … but there was a claim and acceptance of, essentially, trauma. A finding that this tragic event occurred and that it was traumatic for the appellant was clearly made and taken into account by the IAA. A fair reading of the IAA’s reasons reveals that the IAA was conscious of these tragic circumstances, the presumed emotional impact it must have had upon the appellant and the appellant’s contentions that his vulnerabilities arising out those events ought to be taken into account. However, no further evidence as to how those events may have elevated his risk profile upon return to Kabul was put before the IAA. The IAA’s conclusion that the appellant would not face particular risks upon return to Kabul as a result of having experienced this trauma was open and its conclusion did not constitute a failure to have regard to the appellant’s specific circumstances or vulnerabilities, as the IAA took those matters into account to the extent that they were before it. The appellant’s contention reflects, essentially, an emphatic disagreement with the IAA’s conclusion on the merits that, absent any further evidence to the contrary, neither the trauma nor the tragic event in 1998 itself exposed the appellant to particular risks upon return to Kabul which would render relocation unreasonable. I will return to this analysis in relation to ground two.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Second, whether it could be satisfied that it would be reasonable for the appellant to relocate to Kabul within Afghanistan, where there would not be a real risk that the appellant will suffer significant harm (the s 36(2B)(a) question), thus engaging the statutory result, should the IAA be so satisfied, that there is taken not to be a real risk of the appellant suffering such harm. Framework considerations Although it will be necessary to examine the statutory provisions and their origin in a little detail, it is sufficient for present purposes to note the following matters. In reaching its conclusion that it would be reasonable for the appellant to relocate to Kabul as an area within Afghanistan where there would not be a real risk that the appellant will suffer significant harm, the appellant contends that the IAA was required: to consider a comparison between the circumstances or conditions that prevail in the person’s existing area of residence and those circumstances or conditions that prevail in the other identified area (in this case Kabul) with a view to assessing the impact of relocation on the appellant: CRI028 v The Republic of Nauru (2018) 92 ALJR 568; 356 ALR 50 at [26] (“CRI028”), Gordon and Edelman JJ at [25] and [26], Bell J agreeing with the analysis of the “internal relocation principle” at [1]; to recognise that reasonableness of relocation depends upon the “particular circumstances” of the appellant and the “impact upon that person” of relocation to the place of residence: CRI028 at [25]; SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18 (“SZATV”), Gummow, Hayne and Crennan JJ at [24]; to recognise that the assessment is not answered only by reference to the “risk of harm” but requires consideration of the individual circumstances of the person and what is “practicable and reasonable” for that person: CRI028 at [26]; SZATV at [24]; to recognise that the “practical realities must be carefully considered”: CRI028 at [26]; and, to recognise that, depending on the issues and circumstances identified by the applicant, the decision‑maker will need reliable information as to the safety and suitability of the place of relocation and will need to pay careful regard to the applicant’s personal and family circumstances: CRI026 v The Republic of Nauru (2018) 92 ALJR 529; 355 ALR 216 (“CRI026”), Kiefel CJ, Gageler and Nettle JJ at [39]. The appellant contends that the IAA was required to exercise its statutory review function in determining whether it could reach a state of satisfaction concerning the elements of s 36(2B)(a) in relation to the claim under s 36(2)(aa) in accordance with the principles at [22] of these reasons derived from CRI026 and CRI028, together with other authorities to be mentioned later in these reasons. The decisions in CRI026 and CRI028 were handed down on the same day. The decisions have a particular context. In CRI026, the Court (constituted by Kiefel CJ, Gageler and Nettle JJ) determined an appeal from the Supreme Court of Nauru which had dismissed an appeal brought under the provisions of the Refugees Convention Act 2012 (Nr) (the “RC Act”) against a decision of the Refugee Status Review Tribunal (the “Tribunal”). The Tribunal had affirmed a decision of the Secretary of the relevant Department made under the RC Act to reject the appellant’s application to be recognised as a refugee under the RC Act, or recognised as a person to whom the Republic of Nauru owed complementary protection obligations under that Act.