DQL18 v Minister for Home Affairs and Anor

[2019] FCCA 2091

FEDERAL CIRCUIT COURT OF AUSTRALIA

DQL18 v MINISTER FOR HOME AFFAIRS & ANOR [2019] FCCA 2091

Catchwords:
MIGRATION – Application for judicial review – protection visa – no matters of principle – application dismissed.

Legislation:

Migration Act 1958 (Cth).

Applicant: DQL18

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: LNG 45 of 2018

Judgment of: Judge Riethmuller

Hearing date: 20 March 2019

Date of Last Submission: 20 March 2019

Delivered at: Hobart

Delivered on: 20 March 2019

REPRESENTATION

Counsel for the Applicant: Mr G Barns

Solicitors for the Applicant: Refugee Legal Service Tasmania

Solicitors for the First Respondent: Australian Government Solicitor

ORDERS

1. The application be dismissed.

2. The applicant pay the respondents’ costs fixed in the sum of $7373.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT HOBART

LNG 45 of 2018

DQL18

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

As corrected

(Delivered extempore)

1. This is an application for judicial review of a decision of the Immigration Assessment Authority (‘the IAA’) made on 12 June 2018.  The applicant is a citizen of Afghanistan who arrived in Australia in July 2013 as an unauthorised maritime arrival when he was only 16 and a half years of age.

2. In July 2016, some three years later, the applicant was invited to apply for a temporary protection visa which he ultimately did in June 2017.  The following month the delegate refused to grant the visa, concluding that the applicant could reasonably relocate to Kabul where he would not face a real chance of serious harm.  The decision was then referred to the IAA in August 2017.  The IAA affirmed the delegate’s decision in June 2018. 

The Applicant’s Claims

1. The IAA summarised the applicant’s claims (at [10]) of its decision.  The substantive basis for the applicant’s claim was that he was at risk as a Shia Hazara in his home district in Kunduz Province in Afghanistan.  The applicant relied upon a number of matters including racism, harm, and an abduction of his father prior to his family moving to Kabul. 

2. The substantive claim was accepted by the IAA, as appears from its reasons (at [49]), resulting in the real issue before the IAA being one of whether or not the applicant could relocate within Afghanistan or whether he ought to be granted a protection visa. 

3. The focus of the relocation reasoning was the city of Mazar-e-Sharif.  This had been the subject of specific submissions by the applicant’s advisers (the Refugee Advice and Case Work Service) on 7 February 2018.  In particular that service submitted (at CB p.301):

   We submit that the spate of recent targeted attacks against Hazaras and Shia Muslims in Mazar-e-Sharif and surrounding areas further evidences that the Applicant will face a real chance of persecution and significant harm if he was forced to relocate there. We note that the Department has previously used out-dated information on the security situation in Mazar-e-Sharif, based on a reporting period of 2012 to the end of 2013. This information fails to take into account any incidents and developments in the more than three years since the information was gathered and is no longer a fair or accurate depiction of the current security situation in Mazar-e-Sharif. We highlight to the IAA attacks in Mazar-e-Sharif which could not have been put forward to the Minister before the decision:

   In December 2017, one civilian was killed and two others wounded in a magnetic bomb blast in Mazar-e-Sharif, the capital of northern Balkh province. [FN omitted].  The attack targeted the vehicle of the commander of Maimana-Almar motorway commander Sakhi Mohammad Qateh. Local officials said as the result nine civilians and two military personnel were wounded. [FN omitted]. Sources report this is evidence that militant insurgents are working to destabilize the province by targeting travel ports in the region, and expand their influence in Mazar-e-Sharif. [FN omitted].

   In November 2017, a local tribe elder was killed in a suicide attack in Mazar-e-Sharif city. Three guards were also wounded. It was reported that the anti-government armed militants have stepped up their efforts to destabilize part of the province. [FN omitted].

   In August 2017 the Afghan police discovered mass grave containing the bodies of at least 36 victims of a recent militant attack on a village near Mazar-e-Sharif. Most of the victims were beheaded; all were men, except for three boys between the ages of eight and 15. Islamic State issued a statement claiming it had led the attack and killed about 54 Shi‘ite Muslims, a minority group in Afghanistan that has often come under attack from Islamic State. Villagers who escaped from Mirza Olang told reporters they saw fighters carrying both the white banner of the Taliban and the black banner of Islamic State. [FN omitted].

   These are only some examples of the most recent attacks carried out in Mazar-e-Sharif and they demonstrate the ability for insurgents to break through into all areas with devastating consequences illustrating that Mazar-e-Sharif is not safe. 

4. The IAA concluded that there were exceptional circumstances to justify considering the new information and set that out (at [4] and [7]), where they said:

   4. The IAA received written submissions from the applicant’s representative, dated 12 September 2017, 17 November 2017, 7 February 2018 and 25 May 2018. The IAA received a further undated submission on 25 May 2018. The submissions in part comprise argument on issues before the delegate, and also refer to claims and evidence that were before the delegate and are part of the review material. I have had regard to this information.

   …

   7. The majority of the new information not before the Minister post-dates the delegate’s decision, and on that basis, I am satisfied that this information could not have been provided before the delegate made his decision. The information predominately relates to issues before the delegate, including the security situation in Kunduz Province (the applicant’s home region), Kabul and Mazar-e-Sharif, about the reasonableness of relocation to Kabul and Mazar-e-Sharif, about the risks faced by Hazaras and Shias across Afghanistan from insurgent groups, and about the risks to those who return to Afghanistan as failed asylum seekers from western countries. Insofar as the new information relates to the situation in Afghanistan for Hazaras and Shias, the security situation in Kunduz Province, Kabul and Mazar-e-Sharif, and the situation faced by those who return to Afghanistan as failed asylum seekers from western countries, I am satisfied that there are exceptional circumstances to justify consideration of this information. The new information is from credible reports that relate to events that postdate the delegate’s decision and that are material to the issues under consideration.

5. The IAA ultimately rejected the applicant’s claim, saying:

   53. There have been reports of occasional insurgent attacks near Kabul airport in past years. [FN omitted]. I have further taken into account the information above about mass-casualty attacks in Kabul in recent years. While serious, I am not satisfied these attacks are indicative of a threat of harm to the applicant in reaching Mazar-e-Sharif. Relevantly, I consider that any period of time he would need to spend transiting would be brief, and that the government and security forces maintain effective control in Kabul, including at the airport and I am satisfied that this will not change in the reasonably foreseeable future. I am not satisfied that the applicant would now, or in the reasonably foreseeable future, face a real chance of serious harm during any transit period. Accordingly, I am not satisfied the applicant faces a real serious chance of harm in accessing Mazar-e-Sharif.

   …

   62. As noted above, Mazar-e-Sharif is home to several universities including Balkh University, the second largest in Afghanistan. Country information indicates that Balkh province has a tradition of high educational standards and has a comparatively high literacy rate. [FN omitted]. I am not satisfied the applicant would be denied to opportunity to continue his education in Mazar-e- Sharif if he so chooses.

   63. The delegate considered whether the applicant faced harm in Afghanistan due to the general security situation in Afghanistan. Country information before me indicates that the population in Afghanistan are exposed to generalised and indiscriminate violence relating to conflict in the country. In terms of the general security situation in Afghanistan, I accept that the government does not exercise uniformly effective control over all parts of the country, particularly in rural areas. [FN omitted] Mazar-e-Sharif is a large urban centre under effective government control. The evidence before me does not support that the Afghan government or security forces are losing control of Mazar-e-Sharif. While I accept that civilians have been victims of attacks from time to time, taking into account the general security situation, and the size and diversity of the city, I find the chance that the applicant would be harmed as a bystander, or inadvertently caught up in an attack, or otherwise harmed through generalised violence is remote. I am also satisfied that any harm the applicant may possibly face in relation to generalised violence would not be for the essential and significant reason or reasons of his race, religion, nationality, membership of a particular social group or political opinion, but rather a consequence of any ongoing insurgency or insecurity present in the country overall. Accordingly, s.5J(1)(a) and 5J(4)(a) of the Act would also not be satisfied.

   64. After having regard to the applicant’s claims individually and cumulatively, I find that he does not have a well-founded fear of persecution within the meaning of s.5J.

Grounds of Judicial Review

1. The application for judicial review in its amended form relies upon one ground as follows:

   1. The IAA constructively failed to exercise its jurisdiction, or failed to carry out its statutory task, in that it failed to consider a claim made by the Applicant or, alternatively, significant evidence in support of the claim that:

   The Applicant faced a real chance of harm in relocating to Mazar-e-Sharif in Afghanistan.

2. In substance the applicant argues that the material put forward in the submissions as quoted above was not adequately considered or dealt with by the IAA in considering the applicant’s claim.  The significant difficulty that the applicant faces is that there is discussion about these issues in the reasons of the IAA.  The IAA said:

   47. I have considered whether the applicant would be at risk of serious harm on the basis of his imputed political opinion, or other relevant characteristic, elsewhere in Afghanistan. For the reasons given below, I am not satisfied that the applicant faces a real chance of persecution in Mazar-e-Sharif. Having regard to the applicant’s circumstances, I am not satisfied that the threat of harm he may face on return by the Taliban in Khan Abad extends beyond his localised region.

   48. The city of Mazar-e-Sharif is a major urban area, is home to one of the country’s largest commercial and financial centres, and is the third largest city in Afghanistan. [FN omitted]. The city has a large security presence and its population is ethnically diverse, comprising a number of different ethnic groups including Hazaras, Tajiks, and Pashtuns. [FN omitted]. It is home to several universities including Balkh University, the second largest in Afghanistan. In April 2017, the UN Special Rapporteur highlighted positive progress underway in Mazar-e-Sharif, with projects securing landownership or occupation rights, providing homes, essential services and livelihoods. [FN omitted].

   49. In September 2017, Anand Gopal, a program fellow with the International Security Program at New America Foundation, reported that insurgents lack a presence in Mazar-e-Sharif and stated that it was difficult for insurgents to penetrate and target the city.18 The UK Home Office reported that during the 2015-2016 period the majority of security incidents (around 93 per cent) in Balkh Province occurred outside of Mazar-e-Sharif19. While information before me indicates that there have been attacks in Mazar-e-Sharif in recent years,20 the attacks have been primarily against persons and targets associated with the government and international community, rather than Shias or Hazaras. In October 2016, around 18 Shiite worshippers were killed when a bomb exploded outside a mosque in the Khojagholak area of Balkh district, near the city of Mazar-e-Sharif, although there was no claim of responsibility.21 On the evidence before me, there have been no attacks in Mazar-e-Sharif targeted at Shias (or Hazaras) since Lashkar-e-Jangvi carried out coordinated attacks on locations in Mazar-e-Sharif, Kabul and Kandahar in 2011.22 While I accept there have a number of incidents in Mazar-e-Sharif in recent years and that civilians have been harmed in several of these incidents, the incidents have been infrequent and the attacks are almost exclusively directed against national security forces, and international and government targets.

   50. The recent mass casualty attacks against Shias in parts of Afghanistan23 have not been insignificant and I do not downplay the complexity, seriousness and gravity of recent attacks and I accept that Shias will likely be the subject of further attacks in parts of Afghanistan. DFAT assesses that Shias are particularly vulnerable when assembling in large and identifiable groups, such as during demonstrations or when attending mosques during major Shia religious festivals.24 However, DFAT does not specify a level or threshold of such risk, nor whether it exists consistently throughout the country. I have taken into account the scale, frequency and locations of attacks against Shias, Hazaras, and other profiles held by the applicant in recent years, as well as the wider conflict formations and the patterns of insurgent activity across the country. I give weight to the overall security presence and actions in Balkh Province and the fact that the government maintains effective control of Mazar-e-Sharif and I am not satisfied that state institutions are weakened such that this will change, or that the city will otherwise fall to the control of the Taliban, Islamic State or other insurgents in the reasonably foreseeable future. Further, I give weight to the fact that Shias have not been targeted in Mazar-e-Sharif city since 2011 and even taking into account the October 2016 attack outside the city, I am not satisfied on the evidence before me that sectarian attacks by Islamic State (nor any other actor) against Shias in or in proximity to Mazar-e-Sharif will extend beyond sporadic incidents. When having regard to these factors, the applicant’s lack of other profile or proximity connected to those in government, international community or other high profile groups, and the nature and extent of the attacks perpetrated in Mazar-e-Sharif in the recent past, the country information relating to the reach of insurgent groups, and given that I do not accept that the applicant is a person of adverse interest to Islamic State or the Taliban, I am not satisfied that there is a real chance he will suffer harm in Mazar-e-Sharif from an insurgent group, like Islamic State or the Taliban, for reason of his religion, his ethnicity, or due to him being a Shia Hazara, now or in the foreseeable future. I find the applicant does not face a real chance of harm in Mazar-e-Sharif for these reasons.

3. Importantly, (at [49] in the middle of the paragraph), the IAA clearly identifies by footnote various incidents that had occurred which were referred to by the applicant. 

4. The applicant complains that inferences should be drawn from the material submitted that there were real risks to the applicant and members of his ethnic or religious group. It does seem clear that to the extent that the IAA made findings they were largely in accordance with the evidence before them, albeit that other inferences could have been drawn. For example, the first of the dot points in the submission (quoted above) refers to a commander of the motorway being the subject of an attack and such attacks upon officials are noted by the IAA: see [49]. Whilst a tribal elder would not be a formal official within the context of the circumstances in Afghanistan, it seems to me that it is quite reasonable to describe a tribal elder as being in the category of an official or at least a person of significance on an official or political basis.

5. The third dot point relates to an attack upon a village. Firstly, it should be noted that it is not an attack in Mazar-e-Sharif itself but a village nearby; secondly, it relates to Shiite Muslims; and, thirdly, it does not appear to set out a date when that attack occurred, only the date when the graves of those who were sadly killed was located. This does not seem to run contrary to the specific findings that the IAA have made in [49].

6. On the material before the IAA, it appears that it was open to them to make the findings that they did as to the safety or otherwise of the applicant if living within Mazar-e-Sharif and this is what they did. 

7. I do not accept that the reasons are such as to indicate that the IAA have failed to consider or engage with the submissions that were quoted above, nor that they have failed to carry out their task by failing to consider a claim that the applicant has made. 

8. The IAA discussed the evidence before it as to the risks in Mazar-e-Sharif and from that material drew inferences available to the IAA.  The IAA is not required to set out in full all of the submissions made to it, nor to summarise in detail all of the material before it.  The reasons are to explain the reasonable process to reach a decision. 

9. On the material before me I am not persuaded that the applicant has made out the ground for judicial review. 

10. In the circumstances I must therefore dismiss the application. 

    [Further argument ensued]

Costs

1. The applicant has been unsuccessful.  It’s appropriate the respondent have their costs.  The scale fee, I’m told, that’s sought in this matter is $7373.  It seems to me that that amount is reasonable given the nature of the matter and the submissions that were made. 

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller

Date: 7 August 2019

Correction

The Applicant’s pseudonym has been amended from DLQ18 to DQL18.