DWY17 v Minister for Immigration
[2019] FCCA 1246
•12 April 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DWY17 v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 1246 |
| Catchwords: MIGRATION – Judicial review – Immigration Assessment Authority – reasonableness and practicability of relocation – whether a “well-founded fear of persecution” applies in all areas of a country – “internal relocation” principle – requirement for assessment of reasonableness. |
| Legislation: Migration Act 1958 (Cth), ss.36(2)(aa) - 36(2B)(a), 5J(1)(c) |
| Cases cited: SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18 DZU16 v Minister for Immigration and Border Protection (2017) 321 FLR 306 MZANX v Minister for Immigration and Border Protection [2017] FCA 307 |
| Applicant: | DWY17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | ADG 358 of 2017 |
| Judgment of: | Judge Young |
| Hearing date: | 12 April 2019 |
| Date of Last Submission: | 12 April 2019 |
| Delivered at: | Darwin |
| Delivered on: | 12 April 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr Barnes |
| Solicitors for the Applicant: | Beena Rezaee Legal & Migration |
| Counsel for the First Respondent: | Mr Evans |
| Solicitors for the First Respondent: | Australian Government Solicitor |
ORDERS
The application filed 4 September 2017 be dismissed.
The applicant pay the first respondent’s costs in the sum of $7,000.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT DARWIN |
ADG 358 of 2017
| DWY17 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Ex-Tempore
These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.
This is an application for judicial review of a decision of the Immigration Assessment Authority made on 31 July 2017 affirming the decision of the Minister’s delegate to refuse a protection visa to the applicant.
The applicant is an Afghan citizen of Hazara ethnicity and is a member of the Shia sect of Islam. His protection claims were, and I summarise, as follows. He said that following sectarian clashes between Sunni and Shia students at Kabul University in 2012 he was targeted for kidnap by the Taliban. The applicant said that he was subsequently kidnapped but escaped and then fled to Australia soon after. He arrived in Australia in 2013.
The Authority found the applicant’s narrative of events to be implausible and inconsistent and did not accept that he had been targeted and kidnapped as he claimed. However, the Authority accepted that as an Hazara and a Shia he was at real risk of serious harm in much but not all of Afghanistan. It found that he was not at risk on any refugee ground in his home district of Jaghori but would be at risk if he travelled away from Jaghori.
In addition, in relation to Kabul, the Authority found that he was not at real risk of serious harm pursuant to section 5J(1)(c) of the Migration Act which states a well-founded fear of persecution must relate to a real chance of persecution in all areas of a receiving country. In making that assessment, the Authority did not consider the reasonableness or practicability of the applicant relocating to Kabul.
The Authority also considered whether the applicant was owed an obligation under the complementary protection provisions of section 36(2)(aa) of the Act. It is not in question that an assessment of the reasonableness and practicability (which, it was agreed, are in substance the same) of relocation is required as part of that consideration under section 36(2B)(a). The applicant alleged that the Authority did not discharge its statutory function in that it failed to apply detailed consideration to the question of reasonableness under the complementary protection provisions of the Act but rather applied a “broad brush”.
Turning to the grounds of the applicant’s application, I do not propose to read each of the grounds but will summarise them. Ground 1 says that the Authority committed jurisdictional error in considering whether the applicant had a well-founded fear of persecution under section 5J of the Act by failing to consider whether there was a real chance of persecution in relation to all areas of Afghanistan and, specifically, whether it was reasonable for the applicant to relocate to Kabul where the Authority considered there was not a real chance of persecution.
The applicant submitted that the amendment of the Migration Act to include s 5J, which occurred in 2014, did not substantially change the pre-existing law in relation to what was required in making an assessment of whether an applicant is owed protection obligations as a refugee. He referred to the law as set out in SZATV v Minister for Immigration (2007) 233 CLR 18.
The applicant was unable to point to any direct authority since 2014 in support of that submission. He did point to two cases against his argument, those being DZU16 v Minister for Immigration [2017] FCCA 851 and the decision of the Full Court of the Federal Court in the Minister for Immigration v DZU16(2018) 253 FCR 526 on appeal from that decision
Discharging his duty as counsel, Mr Barnes pointed out that those authorities might be interpreted as against him but, he said, that certainly in the case of the Circuit Court decision that the relevant remarks of the court were wrong or at least that the formulation was inconsistent with his submission. The Minister said that section 5J amounts to a codification of the refugee test or perhaps, technically, the test of whether there is a well-founded fear of persecution and reasonableness is not a necessary element of the test in subsection 5J(1)(c).
The counsel for the Minister pointed to the explanatory memorandum that was provided at the time of the amendment of the Act and relied on section 15(AB)(2)(e) of the Acts Interpretation Act. I will not read all of the explanatory memorandum, which runs over some 11 pages but at the foot of page 10 there is this sentence:
It is the government’s intention that this statutory implementation of the “internal relocation” principle not encompass the “reasonableness” test which assesses whether it is reasonable for an asylum seeker to relocate to another area of the receiving country.
The explanatory memorandum goes on to expand on that notion but the sentence I have read is an adequate statement of the essence of the memorandum as it applies to section 5J.
The Minister also relied on DZU16 v Minister for Immigration, that is, at the Circuit Court level and, in particular, paragraph 158 of that decision which said:
I accept the Minister’s submission as set out at [137]-[140] above that, following the insertion of sections 5H and 5J into the Migration Act, the Authority was not required to consider the reasonableness of relocation in its assessment of the applicant’s claims to be a refugee. It remained necessary to consider the reasonableness of relocation in considering the complementary protection criterion.
The paragraph continues but it is not necessary to read further.
That decision was appealed to the Full Court of the Federal Court, as I have mentioned, and the decision reversed on another point. The proper construction of s 5J(1)(c) was not in issue on the appeal and the Full Court did not make any observations about it and certainly made no observations about the passage that I have just read. The Minister also pointed to another Circuit Court decision in FAB17 v Minister [2018] FCCA 2933 where it was said at paragraph 17(h) that:
The IAA, while not obliged to do so following the removal of the “reasonableness” requirement of section 5J(1)(c) of the Migration Act in 2014, considered the reasonableness of the applicant relocating to Islamabad including...
Counsel for the Minister conceded that there was no indication in that decision that that observation was in any sense in issue or the observation was made after hearing submissions. Both counsel for the applicant and counsel for the Minister told me that they were not aware of any other authority, either for or against the applicant’s submissions, in relation to the proper construction of s 5J(1)(c).
In the circumstances, I accept that the explanatory memorandum sets out a clear legislative intention and I am satisfied that there is no requirement to include an assessment of reasonableness in deciding whether there is a safe area, pursuant to section 5J(1)(c), there is a real chance of persecution relating to all areas of receiving country and whether it is reasonable or practicable to expect for an applicant to relocate to that safe area.
In the circumstances, Ground 1 is not made out.
Ground 2 alleges that the Authority, in considering the reasonableness or practicability of relocation to Kabul, failed to undertake the detailed factual inquiry or the factually intensive inquiry in relation to that issue required by the authority of SZATV and the single judge Federal Court decision of MZANX v Minister for Immigration [2017] FCA 307.
The applicant’s particulars of Ground 2 alleged that the Authority conducted a “broad brush assessment” without any detailed consideration of the practicalities facing the applicant if he returned, including (I note these paragraphs do not start at (a) but rather at (i) which is evidently an error):
(i)what kind of employment was available in what industries in Kabul. The Authority’s reference to the strength of the construction industry and the fact that the applicant had previously worked as a tiler/labourer is a prime instance of a failure to consider a sufficiently particularised assessment of the impediments which might face the applicant in seeking such work in the future and whether this would provide him with a sufficient level of income to be self-sustaining;
(j)whether the applicant’s limited formal educational background would limit his employment prospects in Kabul;
(k) whether, despite the applicant having sold his vehicle, the kind of employment available at Kabul and applicable to the applicant’s skill set and experience, would require the applicant to travel on the roads outside of Kabul, which has been known to be a safety concern for Hazara Shias;
(l) what, if any, specific areas existed in Kabul where accommodation, employment or other relevant services would be available to him, that would allow him to meet his basic needs;
(m)whether the applicant would be able to sustain himself long term in Kabul, without either family or tribal support, having regard to the danger the Authority accepted he would face by travelling to his home area; and
(n)whether, having regard to the views of Professor William Maley, it was reasonable to consider that the applicant could “reintegrate” into the Afghan community in Kabul and in particular within the Hazara community.
The starting point for consideration of this ground is the High Court decision in SZATV (2007) 233 CLR 18. That case was concerned with the question of the reasonableness of relocation in the context of a refugee claim, rather than a complementary protection assessment, as is the case here. However, I accept that the observations in that case are apposite to this case. At paragraph 24 of that decision the majority constituted by Gummow, Hayne and Crennan JJ said as follows in relation to a relocation assessment:
However, that does not mean that without more, the formulation by the Minister is sufficient and satisfactory. What is “reasonable”, in the sense of “practicable”, must depend upon the particular circumstances of the applicant for refugee status and the impact upon that person of relocation of a place of residence within the country of nationality.
The applicant also relied on the decision of MZANX v Minister for Immigration (2017) FCA 307, a decision of Mortimer J hearing an appeal from this court. That decision concerned the question of “reasonableness” within the context of a complementary protection assessment relating to a young Hazara, his wife and two year old child and the reasonableness of their relocation to Kabul. At paragraph 50 of that decision Mortimer J referred to the SZATV passage I have read. At paragraphs 63 to 67 he considers some of the factors that would be relevant to an assessment of the reasonableness of relocation in the circumstances of that particular family. He mentioned health, employment, community links and the prospects of employment for an uneducated Hazara, as was the case in that case. At paragraph 69 his Honour said as follows:
All these matters illustrate the fact-intensive nature of the inquiry. What is reasonable and practicable for one Hazara person in terms of relocation to Kabul may not be for another. It may depend on whether she or he is accompanied by family members or has dependent children, on her or his level of education, her or his resourcefulness, psychological resilience, physical health and knowledge of the Hazara community in Kabul. These are the kinds of inquiries necessary to reach a rational and reasonable conclusion on whether, as a matter of practical reality, an applicant can safely relocate. These matters are not addressed by stopping the inquiry at the level of generality evident in [85] of the reviewer’s reasons, even if read with the findings in [84] about there being no risk of significant harm to the applicant and his family.
The Authority’s consideration of the practicability of relocation for this applicant was necessarily framed in terms of the applicant’s “objections” to relocation. In my view, each of the matters referred to in the particulars of Ground 2 was considered to some degree by the Authority at paragraphs 47 to 52. At paragraph 47 it acknowledged that the applicant had no family in Kabul. It referred to him having had friends living in Kabul but accepted that they may no longer be living there.
The Authority referred to a lack of affordable housing and high unemployment but noted that the applicant had previously lived in Kabul, although he had not worked there. It noted or acknowledged that the applicant would be unable to travel outside Kabul because of the danger on the roads and that is a danger to Shia Hazaras, as I read it in context, and the potential targeting of Shia citizens. The Authority did not accept that the applicant would be targeted in Kabul and gave reasons for that conclusion.
The Authority concluded that the risks from general attacks in Kabul were remote and that there was no risk from discrimination, cruel or inhuman treatment or torture. It also noted that some 40 to 50 per cent of the population of Kabul, that is, up to two million people, were Hazaras. The Authority accepted, as I have mentioned, that the applicant had no family in Kabul and that his family lived in Jaghori District in Ghazni Province. It referred to the emotional impact of separation between the applicant and his family but noted that he had lived in Kabul for two significant periods in 2012.
The Authority addressed the issue of employment at paragraph 50 of the decision. It noted that there was widespread unemployment in Kabul but there were opportunities for employment in the retail and construction industries. It noted that the applicant had worked as a labourer/tiler in Afghanistan between 2008 and 2011 and had worked as a tiler in Australia since 2015.
The Authority referred to Professor Maley’s opinion, expressed in country information provided to the Authority by the applicant, that persons without family or tribal links in Kabul were likely to end up destitute, exploited or exposed to criminal predation. It referred to DFAT and UNHCR material that said, on the contrary, that such family and tribal links were not necessarily required for single and able-bodied men to be able to sustain themselves in Kabul.
The Authority referred to the UNHCR information in regard to reasonableness of relocation and noted that that report said that the practicability of relocation may depend on ethnic and family support but single able-bodied men were an exception to that general requirement. The Authority noted that there was a large Hazara community in Kabul: up to 50 per cent of the population or two million people.
The Authority noted that the applicant was apparently resourceful and resilient and had successfully lived apart from his family and settled and worked in unfamiliar places. At paragraph 51 it referred to the availability of housing. It noted that rent was expensive in Kabul and that 70 to 80 per cent of the population live in “informal settlements.” At paragraph 52 the Authority accepted that there were “challenges” to relocating but the applicant was able-bodied, of working age and without any health problems and with the relevant skills and attributes to find employment and earn a livelihood to sustain himself with the necessities of life. The Authority concluded that over time the applicant will be able to integrate into the community.
Returning to the points in the Ground 2 of the application, in relation to employment the Authority, as I have recited, was satisfied that there was employment available to the applicant and that he had worked previously in Afghanistan as a tiler and that the construction industry apparently offered opportunities for employment. While it did not refer specifically to (j), the applicant’s lack of education, it did, apparently correctly, discuss his skills and attributes and experience and training, particularly as a tiler, and concluded that employment would be likely to be available to him in that field.
The Authority, in relation to (k), considered whether the applicant would be able to travel outside Kabul and concluded that that would be unsafe for him. It did not, under (l), identify any specific area in Kabul where the applicant could find accommodation, employment and other relevant services. It did, however, note that in relation to housing, that the applicant would face high rents in the formal housing sector in Kabul and acknowledged that along with 70 to 80 per cent of the population, he may need to find housing in “informal settlements.”
The Authority considered whether the applicant could, in relation to (m), sustain himself in Kabul without family or tribal support having regard to the material from Professor Maley, DFAT and the UNHCR. It concluded that, as a single able-bodied and healthy young man, there were prospects to sustain himself, unlike families, for example. In relation to (n), it did have regard to the views of Professor Maley but, in relation to the prospects of reintegration, for the reasons that I have given preferred the country information from DFAT and the UNHCR.
Having regard to that material, it is obvious that there must be a high degree of uncertainty about life in Kabul and the prospects of the applicant being able to properly sustain himself. It is certainly the case that someone used to living in a developed country would find relocation to Kabul not only “challenging”, to use the word of the Authority, but extremely difficult. However, the Authority has undertaken an assessment and, while that assessment might be subject to the observations that I have just made about the degree of uncertainty involved, it appears to me that the Authority has attempted to make a reasonably detailed assessment of the applicant’s prospects and has not simply applied a “broad brush” assessment.
I am satisfied in regard to those matters that the Authority, in undertaking what is obviously a very difficult assessment, has done so in a way which discharges its statutory obligation under s 36(2)(aa) of the Migration Act and having regard to the matters in subsection (2B), that is, in relation to reasonableness, in a way that does not constitute jurisdictional error. Ground 2 is not made out. The application is dismissed.
I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Judge Young
Associate:
Date: 13 May 2019
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