Dvu16 v Minister for Immigration

[2019] FCCA 1271

FEDERAL CIRCUIT COURT OF AUSTRALIA

DVU16 v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 1271

Catchwords:
MIGRATION – Immigration Assessment Authority – application for a Safe Haven Enterprise visa – oral application for an adjournment refused – whether the Authority made an unreasonable conclusion and/or addressed the wrong question – whether the Authority’s findings were inconsistent or contradictory – no jurisdictional error made out – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5, 5H, 5J, 36, 473DD, 476

Applicant: DVU16

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: PEG 576 of 2016

Judgment of: Judge Street

Hearing date: 15 May 2019

Date of Last Submission: 15 May 2019

Delivered at: Sydney

Delivered on: 15 May 2019

REPRESENTATION

Solicitors for the Applicant: Mr N Draper
D'Angelo Legal

Solicitors for the Respondents: Ms B Rayment
Sparke Helmore

ORDERS

1. Grant leave to the First Respondent to file in Court the Affidavit of Thomas Morgan Lettenmaier affirmed 14 May 2019.

2. The name of the First Respondent is changed to “Minister for Immigration, Citizenship and Multicultural Affairs” and the Court dispenses with the need for the filing of any further document in that regard.

3. The oral application for an adjournment is refused.

4. The Amended Application is dismissed.

5. The Applicant pay the First Respondent’s costs fixed in the amount of $4,800.00.

DATE OF ORDERS: 15 May 2019

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

PEG 576 of 2016

DVU16

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Immigration Assessment Authority (“the Authority”) under Part 7AA of the Act made on 25 October 2016 affirming the decision of the delegate not to grant the applicant a Safe Haven Enterprise visa.

2. The applicant was found to be a citizen of Afghanistan and his claims were assessed against that country. The applicant was found to be of Hazara ethnicity and a Shia Muslim. On 7 October 2015, the applicant lodged an application for a Safe Haven Enterprise visa. The applicant provided a statement in support of the application.

3. The applicant’s claims for protection, in summary, arise in relation to his previous escape from the Taliban, who were seeking out his brother who was a former member of the Afghan military and Harakat party, as well as the applicant’s Hazara ethnicity and Shia faith, and because the applicant would be returning to Afghanistan as a failed asylum seeker from a western country.

4. On 22 July 2016, the delegate found that the applicant failed to meet the criteria for the grant of a Safe Haven Enterprise visa.

5. On 26 July 2016, the Authority wrote to the applicant explaining that the application for the visa had been referred to the Authority for review. The letter provided an attached fact sheet and practice direction giving the applicant an opportunity to put on new information and submissions. The applicant put on new information in submissions dated 5 August 2016. The submissions were referred to in the Authority’s reasons.

6. On 15 August 2016, the Authority wrote to the applicant inviting the applicant to comment on new country information in relation to the assessment of future attacks upon Hazaras in Kabul, and also in relation to Mazar-e-Sharif and flights from Kabul to Mazar-e-Sharif in determining whether it is reasonable for the applicant to relocate to Mazar-e-Sharif.

7. Later on 15 August 2016, following the sending of the letter inviting the applicant to comment, it is apparent that the applicant sent an email to the Authority from the same email address to which the invitation to comment had been sent.

8. On 11 October 2016, there is a file note in which the applicant asserts a difficulty in relation to accessing his email because he had lost his password and suggesting a new email address. Following that file note, a further email was sent by the applicant from the same email address identifying a new email address to which he asked to have correspondence sent. It is apparent from the Authority’s reasons that the Authority was satisfied that the applicant received the initial correspondence inviting him to comment and found that no response had been sent.

9. The Authority addressed the applicant’s submissions and had regard to the same insofar as the submissions engaged with the delegate’s decision and otherwise considered the new information in accordance with the requirements of s 473DD of the Act.

10. The Authority summarised the applicant’s claims. The Authority found that the applicant’s mother, wife, four daughters and one sister are residing in Pakistan and that the applicant has another sister and some aunts and uncles residing in a particular location in Afghanistan.

11. The Authority was not satisfied that a particular person M will take an adverse interest in the applicant in relation to a land dispute if he were returned to Afghanistan. The Authority was not satisfied that person M has maintained ties with the Taliban given the length of time since he was allegedly involved with them and the applicant’s uncertainty in this regard. The Authority was not satisfied that person M would inform the Taliban if person M were to become aware the applicant had returned to Afghanistan.

12. The Authority accepted that the applicant’s brother was killed by the Lashkar-e-Jhangvi (“LEJ”) in approximately 2011 or 2012. The Authority found that there was no evidence to suggest the applicant’s brother was killed in relation to the fact that the Taliban sought him out in 1997, because the applicant escaped from the Taliban or because of his brother’s previous role in the Harakat party or the Afghan military. The Authority was not satisfied that the brother was killed by the LEJ for these reasons.

13. The Authority was not satisfied that the applicant would be of any adverse interest to the Taliban or any other Anti-Government Element (“AGE”) on return to Afghanistan because of his brother’s past association to the Harakat party or Afghan military or because he was suspected of possessing weapons many years ago. The Authority was not satisfied that the Taliban have maintained an adverse interest in the applicant because he escaped from them many years ago.

14. The Authority was satisfied that the applicant will face a real chance of being kidnapped, subject to physical ill-treatment and even killed on his return to his home region on the basis of his Hazara ethnicity and/or Shia faith. The Authority was satisfied that such treatment amounts to serious harm.

15. The Authority identified the requirements of s 5J(1)(c) of the Act that requires that the real chance of persecution must relate to all areas of the receiving country.

16. The Authority referred to country information and referred to certain incidents that had taken place, and was not satisfied that the motives for those particular incidents were sectarian or that passengers were targeted because of their Hazara ethnicity or Shia faith.

17. The Authority found, taking into account country information, that it was not satisfied Islamic State (“IS”) have a presence in Mazar-e-Sharif.

18. The Authority referred to Hazara Shias constituting a minority in Mazar-e-Sharif and referred to country information indicating that Mazar-e-Sharif has remained relatively secure throughout the protracted recent conflict in Afghanistan.

19. The Authority also referred to the ability to travel from Kabul to the airport in Mazar-e-Sharif and was satisfied that the applicant would be able to safely access Mazar-e-Sharif by air from Kabul.

20. The Authority was not satisfied that the applicant would face a real chance of harm from the Taliban, IS or any other AGE in Mazar-e-Sharif in the reasonably foreseeable future on the basis of his Hazara ethnicity and/or his Shia faith.

21. The Authority was not satisfied that the applicant will face a real chance of harm in Mazar-e-Sharif because he is imputed to be affiliated with the Afghan Government and the international community because of his Hazara ethnicity and/or Shia faith.

22. The Authority found that, overall, the country information does not indicate that Hazara Shias in Mazar-e-Sharif are subject to harassment or discrimination amounting to serious harm. The Authority was not satisfied that the applicant faces a real chance of experiencing discrimination that would amount to serious harm for reasons of being a Hazara and/or Shia in Mazar-e-Sharif.

23. The Authority was not satisfied that the applicant faces a real chance of harm from the Afghan authorities on the basis of having left illegally or for having sought asylum in a western country.

24. The Authority found that the chance of the applicant facing harm from AGEs, the community or the Afghan authorities in Mazar-e-Sharif, on the basis of having returned as a failed asylum seeker or returning from a western country, to be remote.

25. The Authority was not satisfied that the applicant’s brother’s death was because of his previous work for the Afghan Military or Harakat Party, because the Taliban sought him out in 1997 or because the applicant escaped the Taliban’s custody. The Authority was not satisfied that the applicant faces a real chance of harm from the Taliban or the LEJ in Mazar-e-Sharif for such reasons.

26. The Authority was not satisfied that there is a real chance the applicant will be harmed on return to Mazar-e-Sharif as a result of a land dispute.

27. The Authority expressly referred to having considered the applicant’s claims cumulatively in assessing whether he will face a real risk of significant harm in Mazar-e-Sharif. The Authority was not satisfied that if the applicant returns to Mazar-e-Sharif he would face a real risk of significant harm.

28. The Authority found that the applicant did not meet the requirements of the definition of refugee in s 5H(1) of the Act and found the applicant did not meet the criteria in s 36(2)(a) of the Act.

29. The Authority then turned to consider the issue of complementary protection. The Authority referred to the findings that it had already made in relation to the applicant not facing a real chance of harm in Mazar-e-Sharif because of his brother’s past association with the Harakat Party or Afghan military, because he escaped the Taliban many years ago, because his family had a land dispute with a particular person, or for returning as a failed asylum seeker from a western country, or on the basis of a combination of these factors. The Authority referred to the real chance and real risk test being substantially the same and was not satisfied that there are substantial grounds for believing it is a necessary and foreseeable consequence of the applicant being removed from Australia to Afghanistan that the applicant would face a real risk of significant harm in Mazar-e-Sharif.

30. The Authority referred to there being a real risk that the applicant may face low-level discrimination on account of being a Hazara and/or Shia in Mazar-e-Sharif, having taken into account country information. The Authority noted that low-level discrimination occurs in the context of positive preferences for members of one’s own family, tribal, ethnic or religious group. The Authority noted that the applicant did not claim to have suffered any form of mistreatment or harm as a result of being Hazara and/or Shia. The Authority did not accept that the societal discrimination amounts to significant harm as defined in s 5(1) of the Act. The Authority did not accept that the applicant faces a real risk of significant harm from the Taliban, IS or any other AGE on return to Mazar-e-Sharif on the basis of being Hazara and/or Shia.

31. The Authority referred to recent insurgent activity in the Balkh Province and the targeting of people associated with the government and international community. The Authority noted that the applicant does not have a profile that would bring him to the attention of the Taliban or any other AGE and that the applicant has no other association with the government or international community. The Authority was not satisfied that there is a real risk the applicant will face significant harm from insurgent attacks on return to Mazar-e-Sharif.

32. The Authority referred to considering the applicant’s claims cumulatively and found that the applicant will not face a real risk of significant harm in Mazar-e-Sharif. The Authority referred to having taken into account that the applicant is a Hazara Shia, whose family had a land dispute, who escaped the Taliban many years ago, whose brother was previously in the Harakat Party and Afghan Military and suspected of having weapons by the Taliban and who will be returning as a failed asylum seeker from a western country. The Authority found that, assessing the same cumulatively, the applicant’s claims do not give rise to a real risk of significant harm.

33. The Authority also referred to taking into account the particular circumstances of the applicant in assessing whether it is reasonable for the applicant to relocate to Mazar-e-Sharif. The Authority referred to the 2016 UNHCR Guidelines (“the UNHCR”) in this regard and other country information in relation to the Afghan government still maintaining effective control in Mazar-e-Sharif.

34. The Authority took into account that the applicant, having fled Afghanistan at a young age, was able to resettle in Pakistan and establish his own tiling business and also went to Iran in 2002 for nine months where he found work as a tiler. The Authority found that this indicated the applicant to be resilient and resourceful when required.

35. The Authority referred to the UNHCR considering that the only exception to the requirement for external support is single, able-bodied men and married couples of working age without identified specific vulnerabilities. The Authority found that there was no information to indicate that the applicant has family members in Mazar-e-Sharif. The Authority, however, found that the applicant would be returning to Mazar-e-Sharif as a single male. The Authority found that there was no information to indicate that the applicant has any vulnerabilities that would negatively impact on his ability to resettle in Mazar-e-Sharif, which the Authority found remains under the effective control of the Afghan government and is considered one of the biggest commercial and financial centres in Afghanistan.

36. The Authority was satisfied that the applicant would be able to safely access Mazar-e-Sharif by air from Kabul.

37. The Authority took into account the personal circumstances of the applicant and the country information and found it reasonable for the applicant to relocate to Mazar-e-Sharif.

38. The Authority found there are not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being returned to Afghanistan from Australia, there is a real risk the applicant will suffer significant harm.

39. The Authority found that the applicant did not meet the criteria in s 36(2)(aa) of the Act and affirmed the decision under review.

The grounds

1. The grounds in the amended application are as follows:

   1. The Authority made a jurisdictional error in that it unreasonably concluded, and/or addressed the wrong question in concluding, that the Applicant does not have a well-founded fear of persecution or suffer significant harm.

   Particulars

   (a)The Authority unreasonably concluded that the Applicant, of Hazara ethnicity and a Shi'a Muslim from Afghanistan, does not face a real chance of persecution or suffer significant harm if he is relocated to Mazar-e-Sharif, Afghanistan;

   (b)The Authority unreasonably concluded that the Applicant, of Hazara ethnicity and a Shi'a Muslim from Afghanistan, can reasonably be expected to and practicably relocate to Mazar-e-Sharif, Afghanistan;

   (c)The Authority misdirected itself and unreasonable concluded that the Applicant, of Hazara ethnicity and a Shi'a Muslim from Afghanistan, does not face a real chance of persecution or will suffer significant harm if he is relocated, and can reasonably be expected to, and can practicably, relocate to Mazar-e-Sharif, Afghanistan in reliance on and with reference to unreliable country information and failed to pay careful regard to the Applicant's personal and family circumstances.

Ground 1(a)

1. Mr Draper on behalf of the applicant submitted that the Authority had unreasonably concluded that there is a low risk of harm from terrorist attacks in Mazar-e-Sharif given the positive findings that the Authority had made in relation to particular incidents that had occurred. This was advanced by Mr Draper as establishing ground 1(a) in relation to whether the applicant faced a real chance of persecution or suffering significant harm if he relocated to Mazar-e-Sharif.

2. The findings identified by Mr Draper are all findings made by the Authority which, on the face of the Authority’s reasons, the Authority took into account and considered in the adverse findings summarised above. It cannot be said that no reasonable decision-maker could come to the adverse finding made by the Authority in relation to the applicant’s claims in respect of whether the applicant faced a real chance of persecution or suffering significant harm if he relocated to Mazar-e-Sharif. The Authority’s reasons are not to be read with a keen eye for error. The analysis engaged in by Mr Draper as to the findings do not reflect the actual reasoning process by the Authority.

3. It was open to the Authority to identify country information and to make findings from the country information in relation to the applicant’s claims. As summarised above, the Authority did so and those adverse findings were open for the reasons given by the Authority and cannot be said to lack an evident and intelligible justification.

4. Mr Draper’s submissions in relation to ground 1(a) are, in substance, an invitation to the Court to engage in merits review. No jurisdictional error as alleged in ground 1(a) is made out.

Ground 1(b)

1. In relation to ground 1(b), Mr Draper again identified particular findings of the Authority and contended that it was illogical for the Authority to conclude that it was reasonable for the applicant to relocate to Mazar-e-Sharif given the country information referred to by the Authority. The adverse findings by the Authority are not ones in respect of which it could be said that no reasonable decision-maker could come to.

2. Further, the Authority was not bound to accept the country information referred to by Mr Draper, and part of the task of the Authority was to make findings in relation to country information. The asserted illogicality based on the characterisation of the findings by the Authority advanced by Mr Draper does not fairly reflect the analysis and findings by the Authority. There was no illogicality of the kind alleged in respect of the Authority’s reasons as summarised above. No jurisdictional error as alleged in ground 1(b) is made out.

Ground 1(c)

1. In relation to ground 1(c), Mr Draper identified that there were decisions currently before the Court involving similar questions that have been heard by the Full Court of the Federal Court of Australia. Mr Draper sought an adjournment of the proceedings pending the outcome of those decisions. The adjournment was opposed by the first respondent. This matter has been fixed for hearing for some time, and the Court was not satisfied that an adjournment was warranted in the interests of the administration of justice.

2. Whether or not jurisdictional error has been made out in respect of a decision of the Authority in a sphere of legal unreasonableness is a fact intensive exercise. The Court is not satisfied that an adjournment would be of any utility, and it is apparent that there were grounds being advanced other than the ground overlapping the matters reserved before the Full Court. It is for these reasons that the Court made an order refusing the oral application for an adjournment.

1. The kernel of the argument advanced by Mr Draper is based on the assumption that the Authority is required to determine the reliability of country information as to the safety and suitability of the place of relocation. There is no issue that the Authority must take into account the personal circumstances of the applicant. On the face of the Authority’s reasons, it did so. The assertion that the Authority misdirected itself and unreasonably concluded that the applicant does not face a well-founded fear of persecution or a real risk of significant harm in Mazar-e-Sharif from the basis of unreliable country information is without substance.

2. It was a matter for the Authority to determine what country information the Authority accepted and for the Authority to give such weight as it saw fit to the country information. It was also a matter for the Authority to make findings in relation to the applicant’s claims based on the evidence and the submissions. It is apparent that the Authority did identify country information.

3. No particular country information has been identified as being unreliable. No particular country information has been identified as being inconsistent with other reliable country information. The applicant’s submissions in relation to ground 1(c) are, in substance, an invitation to this Court to engage in impermissible merits review. The Court does not accept that the Authority was required to make findings as to the reliability of country information in the manner contended by the applicant in relation to ground 1(c).

4. For the reasons already identified, it is apparent that the Authority did take into account the applicant’s personal circumstances in determining whether it was reasonable for the applicant to relocate. The Court does not accept that there were contradictory and inconsistent findings by the Authority or contradictory and inconsistent country information of a kind that meant the Authority was acting legally unreasonably in concluding that it was reasonable for the applicant to relocate to Mazar-e-Sharif.

5. The Authority provided logical and rational reasons in support of its adverse findings as summarised above, including that the applicant is a single male, and referred to the applicant’s occupation as a tiler and have started a tiling business at a young age in Iran, and the applicant’s ability to safely get to Mazar-e-Sharif. The Authority also took into account the Hazara population percentage in Mazar-e-Sharif and the finding that the discrimination is more of a positive discrimination in relation to family and tribal members and does not amount to serious harm. Ground 1(c) is in substance an invitation to engage in impermissible merits review. No jurisdictional error as alleged in ground 1(c) is made out.

6. Accordingly, the amended application is dismissed.

I certify that the preceding fifty-four (54) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 28 June 2019