DVI17 v Minister for Immigration
[2018] FCCA 241
•30 January 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DVI17 V MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 241 |
| Catchwords: MIGRATION – Protection visa – alleged legal unreasonableness – none shown – application for judicial review dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.5J, 36(2)(a), 36(2)(aa), 36(2B)(a), 473CA |
| Cases cited: Abebe v Commonwealth (1999) 197 CLR 510; (1999) 55 ALD 1; (1999) 162 ALR 1; (1999) 73 ALJR 584; (1999) 7 Leg Rep 2; [1999] HCA 14 |
| Other materials: Kate Clark, The Sane Heartland Of Afghanistan: A Visit to Ghor Lal Wa Sarjangal District (2013) Afghanistan Analyst Network 1 |
| Applicant: | DVI17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | PEG 459 of 2017 |
| Judgment of: | Judge Wilson |
| Hearing date: | 30 January 2018 |
| Date of Last Submission: | 30 January 2018 |
| Delivered at: | Perth |
| Delivered on: | 30 January 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr N. Draper |
| Solicitor for the Applicant: | Granich Partners |
| Counsel for the First Respondent: | Mr P. Macliver |
| Solicitor for the First Respondent: | Australian Government Solicitor |
| Counsel for the Second Respondent: | No Appearance |
| Solicitor for the Second Respondent: | Australian Government Solicitor |
ORDERS
The application filed on 25 August 2017 is dismissed.
The applicant pay the first respondent’s costs of the proceeding fixed in the sum of $7,328.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 459 of 2017
| DVI17 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
(Ex Tempore)
Introduction
By application filed 25 August 2017, the applicant sought the issue of constitutional writs in relation to a decision of the Immigration Assessment Authority (“IAA”) made 28 July 2017. In essence, the IAA affirmed the decision made by a Minister’s delegate on 18 October 2016. Pursuant to the delegate’s decision, the applicant’s application for a protection safe haven enterprise (subclass XD 790), visa lodged in Sydney on 25 July 2016 was refused.
The applicant sought judicial review in this court. He originally relied on two grounds of review –
a)first, he argued that the IAA made a jurisdictional error in that it unreasonably concluded or addressed the wrong question that the applicant did not have a well-founded fear of persecution. To that ground, the applicant subjoined a collection of particulars;
b)as his second ground, the applicant contended that the IAA unreasonably and illogically accepted and relied upon a 2016 DFAT report concerning the plight of returnees in deciding that the applicant did not face a real chance of serious harm if returned to a particular region. He subsequently abandoned the second ground.
The question for me in this case was whether the IAA fell into jurisdictional error in the manner alleged by the applicant.
Synopsis
For the reasons set out below, in my judgment, the IAA did not fall into jurisdictional error in the manner alleged by the applicant. Consequently, the application for judicial review must be dismissed. The applicant must pay the Minister’s costs of this proceeding.
Relevant factual narration
In documentation before the delegate and the IAA, the applicant claimed he was an Afghani national of Hazara ethnicity and Shia Muslim religion, who originated in the Kharanza village, Lal Wa Sarjangal District, Ghor Province, Afghanistan. He gave his date of birth as 1972. He arrived in Australia as an unauthorised maritime arrival on 2 April 2013. On 25 July 2016, he lodged an application for a safe haven enterprise visa.
In support of his claim for protection, the applicant attended an interview with the department on 3 October 2016. The applicant claimed to fear harm from the Taliban by reason of his Shia religion and his Hazara ethnicity. He also claimed to fear harm from his uncle and his uncle’s brother-in-law, both of whom worked for the Taliban. The applicant also claimed that his uncle was attempting to prevent the applicant from claiming land previously owned by the applicant’s father. The delegate took the view that the applicant would face a real chance of persecution in his home area of Lal Wa Sarjangal, but that it would be reasonable for the applicant to relocate to Kabul. The delegate refused to grant the applicant the visa he sought.
In accordance with s.473CA of the Migration Act 1958 (“the Act”), the applicant’s visa application was referred to the IAA. On 31 October 2016, the IAA sent to the applicant’s representative an acknowledgment of referral to the IAA, a copy of the IAA’s practice note and information about the IAA, pointing out that the documentation was taken to have been provided to the applicant on 21 November 2016. The applicant’s representative provided a submission to the IAA.
As mentioned above, on 28 July 2017, the IAA decided to affirm the delegate’s decision not to grant the applicant a protection visa as he sought.
On 25 August 2017, the applicant filed this proceeding in this Court. Before turning to that, let me go to the more important issues that arose before the IAA. So far as its consideration of the applicant’s claims were concerned, the IAA addressed those in paragraph 6 of its reasons. Relevantly paraphrased, the IAA’s consideration of the applicant’s claims were as follows –
a)he was an Afghani national, an ethnic Hazara, and a Shia Muslim, who originated from Kharanza village, Lal Wa Sarjangal District, Ghor Province, Afghanistan;
b)the applicant was born in 1972, yet his father died when he was three, and his mother left soon thereafter, in circumstances where the applicant was raised by the applicant’s paternal uncle, who, with his wife, preferred their own children ahead of the applicant and did not treat the applicant humanely;
c)following the explosion of hidden munitions in which the mother of the applicant’s paternal uncle’s wife was killed, the applicant’s paternal uncle’s wife frequently threatened to kill the applicant;
d)following the fatal beating of the applicant’s sister by the applicant’s paternal uncle’s wife, a different relative assisted the applicant to escape to the Bamyan province, then under the control of Sazman militia;
e)having travelled to Iran in 1984, the applicant returned to Afghanistan in 2004, upon his learning that the Taliban had been overthrown by foreign forces, at which time he learned that his paternal uncle owned his deceased father’s land, that the applicant should make no attempt to reclaim it, and that the applicant’s paternal uncle’s wife’s brother had become very powerful as a Taliban associate, who was helping with the kidnapping of Hazaras and their extortion;
f)the applicant went to Kabul, seeking work, driving a taxi, where he and his wife were attacked in their home by men, one of whom was the applicant’s paternal uncle’s wife’s brother, after which incident in 2005, the applicant went to Iran illegally in 2005;
g)in October or November 2012, the applicant was told his Iranian visa would not be renewed, and he had to leave the country or obtain a new Afghani passport that took 20 days to organise in Kabul, upon which the applicant left for Australia;
h)the applicant’s paternal uncle’s wife’s brother, working as a Taliban informer, does not want the applicant to come back to his village, and if he does, the applicant will be harmed by the applicant’s paternal uncle, as well as by the applicant’s paternal uncle’s wife’s brother; and
i)the applicant feared harm on account of his imputed political opinions that were anti-Taliban, pro-government and pro-Australia.
At paragraph 20 of its reasons, the IAA decided it was not satisfied that the applicant, if he returned to Afghanistan, would face a real chance of harm of any kind from his uncle, aunt or the uncle’s brother-in-law by reason of a land dispute, or by reason of an explosion that lead to the death and injury of members of the uncle’s family, or for any other reason.
At paragraph 27 of the IAA’s reasons, the IAA concluded that it was not satisfied the applicant would, in the area of Lal Wa Sarjangal, face a real chance of suffering harm from the Taliban, from Islamic State, from insurgent AGE, Afghan, or Pakistani or foreign anti-Shia groups, from Pashtuns or Kuchis, from criminal armed groups, or from any other actor, by reason of the applicant –
a)being a Shia Hazara;
b)being a returnee;
c)having sought asylum in Australia;
d)being perceived as anti-Taliban, pro-government, or pro-Australian; or
e)generalised insurgent violence or criminal activity.
Between paragraphs 28 and 29 of its reasons, the IAA said that it was satisfied the applicant would be able to access his home area by flying from Kabul to a paved airstrip in Bamyan for a fare of US$100. The IAA further stated that as the applicant had been employed in Australia, he could pay that airfare, and he could travel in a westerly direction, through more secure roads between Bamyan and his home area.
The IAA found that the applicant had not met the criteria for protection under s.36(2)(a) of the Act, and, for similar reasons, the IAA found the applicant had not met the criteria under s.36(2)(aa) of the Act.
In this court
Having abandoned his second ground of review, the applicant relied only on one ground of review, the first.
Ground 1
While the body of ground 1 was straightforward, the particulars subjoined to ground 1 raised intricate factual matters. The body of ground 1 contained the allegation that the IAA unreasonably concluded that the applicant did not have a well founded fear of persecution. In the applicant’s written submissions, attention was drawn to particulars (i) to (vii), rather than to the broader contention of unreasonableness founded on the conclusion that the applicant did not have a well founded fear of persecution.
Conversely, on behalf of the Minister, several overarching legal principles concerning unreasonableness were advanced. Among them were the following –
a)citing Minister for Immigration and Multicultural Affairs v Eshetu,[1] it was submitted that reasoning described as illogical, unreasonable or irrational may merely be an emphatic way of expressing disagreement with that reasoning;
b)citing Minister for Immigration and Multicultural Affairs, Re; Ex parte Applicant S20/2002; Appellant S106/2002 v Minister for Immigration and Multicultural Affairs,[2] the applicant’s reference to country information in the context of his contention that the IAA acted unreasonably amounted to impermissible attacks on the merits of the IAA’s decision;
c)citing the Full Court’s decision in Gupta v Minister for Immigration and Border Protection,[3] discerning irrationality or illogicality involves more than showing that the decision is one on which reasonable minds might differ, as was held in SZOOR v Minister for Immigration and Citizenship[4] (SZOOR) and Minister for Immigration and Citizenship v SZMDS[5] (SZMDS);
d)illogicality must be shown to have affected the decision in question, as was held in SZOOR;[6]
e)citing Minister for Immigration and Border Protection v Singh,[7] legal unreasonableness can be identified in two contexts, the first being a conclusion reached by a supervisory court after the identification of an underlying jurisdictional error in the decision-making process; and the second being outcome-focused, without necessarily identifying another jurisdictional error, where the decision has the character of a choice that is arbitrary, capricious or without common-sense.
[1] (1999) 197 CLR 611
[2] (2003) 198 ALR 59
[3] [2017] FCAFC 172
[4] (2012) 202 FCR 1
[5] (2010) 240 CLR 611
[6] (2012) 202 FCR 1
[7] (2014) 231 FCR 437
In this case, the Minister argued that to establish irrationality, illogicality or unreasonableness, it is not enough for the applicant to point to country information or other evidence that might, if read in a particular way, have supported a conclusion that was different to the conclusion reached by the IAA.
The Minister argued that when the IAA’s reasons were read as a whole, the IAA’s reasons were supported by evidence and that the IAA gave clear reasons for reaching the conclusions that it did.
In addition to the authorities referred to above on the subject of legal unreasonableness, it must be pointed out that as recently as 15 January 2018, the Full Court of the Federal Court of Australia handed down its decision in DAO16 v Minister for Immigration and Border Protection.[8] There, Kenny, Kerr and Perry JJ made an array of holdings of direct application to the facts of this case. Among them were the following –
a)on matters of credit findings, they are not beyond scrutiny on judicial review, as was held in CQG15 v Minister for Immigration and Border Protection;[9]
b)the question of whether a credibility finding is tainted by jurisdictional error is a case specific inquiry, as was held in ARG15 v Minister for Immigration and Border Protection;[10]
c)in each case, it is necessary to analyse in detail what the decision-maker actually decided, as was held by Robertson J in Minister for Immigration and Citizenship vSZRKT;[11]
d)if there is no logical connection between the evidence and the inferences or conclusions drawn, legal unreasonableness may be demonstrated, as was explained by Bell and Crennan JJ in SZMDS;[12]
e)jurisdictional error may be established where a credit finding is made based on an objectively minor matter, yet the decision-maker rejects the whole of an applicant’s evidence and claims, as was held in SZRKT;[13]
f)credit findings do not shield the relevant decision-maker from scrutiny, as was held in Minister for Immigration and Border Protection v SZUXN; [14]
g)emphatic disagreement with the Tribunal’s reasoning would not be sufficient to make out illogicality, as was held in CQG15; [15] and
h)extreme illogicality must be demonstrated measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions, as was held in SZRKT.[16]
[8] [2018] FCAFC 2
[9] (2016) 70 AAR 413
[10] (2016) 250 FCR 109
[11] (2013) 212 FCR 99
[12] (2010) 240 CLR 611
[13] (2013) 212 FCR 99
[14] (2016) 69 AAR 210
[15] (2016) 70 AAR 413
[16] (2013) 212 FCR 99
In developing his contentions of legal unreasonableness, the applicant argued that the IAA misdirected itself that the applicant did not face a real chance of persecution apart from generalised violence if he were to be relocated to the Ghor Province in the district of Lal Wa Sarjangal. The applicant asserted that such misdirection was in contrast to other evidence. The applicant relied on six discrete propositions in support of his argument that the IAA engaged in legal unreasonableness, each one of those discrete propositions being subparagraphs of the particulars subjoined to the first ground of review. It is necessary to analyse each.
In the first roman subparagraph, the applicant said the IAA engaged in legal unreasonableness by finding that the applicant did not face a real chance of harm if he was to be returned to the Ghor Province, having regard to the existence of conflicting information about whether or not Islamic State emerged in Ghor Province. In this context, the IAA addressed a significant volume of country information comparing and contrasting the security situation in Lal Wa Sarjangal with other parts of Afghanistan. The fact that the IAA was engaged in that comparative analysis did not mean that extreme illogicality was thereby shown, as was held in SZRKT[17] at 148. Put differently, on the question of security in the Lal Wa Sarjangal District, country information did not point universally in the same direction. The applicant himself recognised that the evidence on point was conflicting, but the IAA accepted certain information over other information. Minds may have differed on point, but it could not be said that there was no logical connection between the information on which the IAA relied and the conclusion drawn, as was part of the ratio in SZMDS[18]. The IAA canvassed the situation in Lal Wa Sarjangal between paragraphs 15 and 17 of its reasons. At paragraph 26 of its reasons, the IAA explained why it did not base its findings on the country information offered on behalf of the applicant.
[17] Ibid
[18] (2010) 240 CLR 611
In those circumstances, according to authorities identified above, especially SZRKT[19] and SZMDS,[20] it could not be said that the IAA’s ultimate conclusion about the applicant not facing a real chance of harm if relocated to Ghor Province was illogical, irrational or unreasonable. Such a conclusion was open on the evidence.
[19] (2013) 212 FCR 99
[20] (2010) 240 CLR 611
The applicant said, in the second roman paragraph of his grounds of review, that the IAA misdirected itself by concluding that the applicant did not face a real chance of harm if he was to be returned to the Ghor Province, having regard to the IAA’s finding that Hazaras are widely perceived to be affiliated with the central government and the international community. In his written submissions, the applicant’s solicitors wrote the following –
While it is trite that those Hazaras not working for government are at less risk of harm than those who do not work for the government, all Hazaras nonetheless face a significant risk of harm due to the perception of their government affiliation association, irrespective of whether or not they are actually working for the government.
The IAA reasoned in paragraph 25 of its decision that, although Hazaras are widely perceived to be affiliated with both government and the international community, that did not mean that all Hazaras faced the same level of risk as those working for the government or the international community, and, with the exception of those travelling by road through insecure areas like those between Kabul and Hazarajat, low-profile Hazaras who have spent time in Western countries face a low risk of violence as a result of those international links.
At paragraph 27 of its reasons, the IAA considered the specific circumstances that the applicant would face in Lal Wa Sarjangal. The IAA found that there were no Pashtun or Kuchi residents in that district, it was unaffected by Taliban influence, and it had an entirely Hazara population that had a favourable view of Western countries and the support they provided.
The Minister submitted that the findings recorded in paragraphs 25 and 27 of the IAA’s reasons were not illogical, unreasonable or irrational, as was recorded above. The Minister said the conclusions set out in paragraphs 25 and 27 of the IAA’s reasons were open on the evidence. I agree. I detected no irrationality, illogicality or unreasonableness on the basis contended for by the applicant in the second roman subparagraph of the particulars subjoined to ground 1 of the grounds of review.
In roman paragraph three to the particular subjoined to the first ground of review, the legal unreasonableness was said to have been the IAA’s conclusion that the applicant did not face a real chance of harm if he was to be relocated to the Ghor Province, having regard to the IAA’s finding that the Taliban continued to threaten stability across Afghanistan.
In support of this contention, the applicant argued –
(a)the IAA recorded, at paragraph 26 of its decision, that in 2015 the Taliban held more territory than it had since 2001;
(b)security had deteriorated significantly in other districts of the Ghor District; and
(c)in the 2016 EASO[21] Country of Origin Information Report, it stated that in the Ghor province, Taliban had between 3000 and 3500 combatants in the province, and the Afghan National Security Force were ill-equipped to control the Taliban.
[21] European Asylum Support Office
The Minister did not make submissions that addressed, in terms, the position in relation to the Taliban. However, the Minister pointed out in paragraph 27 of its reasons that the IAA reasoned that based on country information Lal Wa Sarjangal was unaffected by Taliban influence.
In paragraph 26 of its reasons, the IAA specifically addressed the EASO Country of Origin Information Report dated November 2016, as well as an article by Kate Clark, The Sane Heartland Of Afghanistan: A Visit to Ghor Lal Wa Sarjangal District (2013) Afghanistan Analyst Network 1, leading to the IAA’s conclusion that in Lal Wa Sarjangal the applicant would not face a real chance of suffering harm of any kind from the Taliban.
On a fair reading of the applicant’s ground in this subparagraph, it was readily apparent that the applicant took the view that a body of evidence supported the proposition for which he was contending. That much was true, but equally, a body of evidence was before the IAA that supported the conclusion that in Lal Wa Sarjangal Taliban influence did not affect those of Hazara ethnicity. That finding was open. The fact that the IAA relied on that body of evidence ahead of the body of evidence propounded by the applicant did not convert the IAA’s conclusion on the point into one that was illogical, unreasonable or irrational.
That part of the applicant’s ground of review failed.
In roman paragraph four of the particulars subjoined to ground one, the applicant asserted that the IAA misdirected itself by concluding that the applicant did not face a real chance of harm if relocated to Afghanistan, having regard to the IAA’s finding that returning asylum seekers from Western countries are at risk of persecution.
In support of his contention under that subparagraph the applicant referred to the EASO report dated November 2016 to the effect that the primary consideration in determining whether a returnee to Lal Wa Sarjangal faced a serious risk of harm was not the returnee’s ethnicity or religion but rather the returnee’s tribal affiliation. The applicant argued that the IAA failed to give any consideration to the applicant’s tribal affiliation when the Afghan Analyst Network Report of August 2013 found that Ghor was a multi-ethnic and multi-tribal society, that historically the tribes feuded, and that ethnic fragmentation was the main cause of the significant security risk in the province.
The Minister submitted that the applicant made no claim in this case based on tribal affiliation, whether before the delegate or before the IAA, and, based on the Full Court’s decision in NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No.2),[22] any issue about the applicant’s tribal affiliation did not arise on the material before the IAA. The IAA in fact had regard to the AAN article in paragraph 27 of its reasons and it had regard to the EASO report especially in paragraph 26 of its reasons. However, the Minister’s point was a good one, namely that no claim was made in this case based about the applicant’s tribal affiliation as a source of risk of harm if he were to return to Lal Wa Sarjangal. In my view, this subparagraph had no merit.
[22] (2004) 144 FCR 1
As fifth roman subparagraph of the particulars subjoined to ground one, the applicant asserted that the IAA misdirected itself in concluding that the applicant did not face a real chance of persecution if relocated to the Ghor Province, having regard to the IAA’s finding that it was reasonable for the applicant to return to Ghor when the economic opportunities were limited, finding employment was difficult and when Hazara majority areas had inadequate development, assistance and infrastructure. In developing his submissions on this point, the applicant argued that the IAA found that Ghor was very mountainous, its small villages were generally inaccessible during winter, it is one of the most underdeveloped provinces in Afghanistan and it is extremely impoverished.
In response, the Minister submitted that the IAA did not make a finding that it would be unreasonable for the applicant to return to Ghor, nor was the IAA required to consider making any such finding for the purposes of s.5J or s.36(2)(a) of the Act. The Minister also submitted that, for the purposes of s.36(2B)(a), as well as s.36(2)(aa) of the Act, it was also unnecessary for the IAA to consider whether it was reasonable for the applicant to be returned to Lal Wa Sarjangal.
I agree that the IAA did not make a finding that it would be reasonable for the applicant to be returned to Ghor, as the Minister contended. In my view, in this component of the applicant’s case the applicant was loose with the point he advanced and the evidence to support the applicant’s contention on page 6 paragraph 10(2) was scant to non-existent.
Let me make some final observations on the use to which country information may be put in a proceeding such as this. They are –
a)the accuracy of country information is a matter for the Tribunal, not a court, because a court would be engaging in an impermissible merits review if it made its own assessment of country information, a proposition made good by the Full Court of the Federal Court in NAHI v Minister for Immigration and Multicultural and Indigenous Affairs,[23] and see also my observations in AUV15 v Ministerfor Immigration and Border Protection;[24]
b)the choice and interpretation of country information is a factual matter for the Tribunal alone, as was held by Applicant NABD of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs[25] and in NBKT v Minister for Immigration and Multicultural Affairs;[26]
c)the court cannot review the merits of the Tribunal’s decision in that regard, as was held in Minister for Immigration and Ethnic Affairs v Wu Shan Liang;[27]
d)there is no error of law in the Tribunal making a wrong finding of fact, as was held in Abebe v Commonwealth[28] and in SZIJG v Ministerfor Immigration and Citizenship.[29]
[23] [2004] FCAFC 10
[24] [2017] FCCA 1951
[25] (2005) 84 ALD 545
[26] (2006) 156 FCR 419
[27] (1996) 185 CLR 259
[28] (1999) 197 CLR 510
[29] [2007] FCA 1652
In my view, none of the subparagraphs of ground 1, or even the body of ground 1, have merit.
Conclusion
For those reasons, I dismiss this proceeding and order the applicant to pay the Minister’s costs fixed in the sum of $7,328.
I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Judge Wilson
Associate:
Date: 2 February 2018
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Natural Justice
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Procedural Fairness
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Jurisdiction
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