DYP17 v Minister for Immigration

[2018] FCCA 2829

FEDERAL CIRCUIT COURT OF AUSTRALIA

DYP17 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 2829

Catchwords:
MIGRATION – Protection Visa – whether Immigration Assessment Authority’s decision affected by jurisdictional error – where no error established in Immigration Assessment Authority’s decision – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.473DC

Cases cited:

Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16
CVK16 v Minister for Immigration and Border Protection [2017] FCA 1434
Minister for Immigration and Border Protection v CRY16 & Anor (2017) 253 FCR 475

Applicant: DYP17

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: BRG 870 of 2017

Judgment of: Judge Vasta

Hearing date: 30 August 2018

Date of Last Submission: 30 August 2018

Delivered at: Brisbane

Delivered on: 30 August 2018

REPRESENTATION

Counsel for the Applicant: Mr Karp

Solicitors for the Applicant: FISHER DORE LAWYERS

Counsel for the Respondent: Ms S. Forder

Solicitors for the Respondent: SPARKE HELMORE

ORDERS

1. That the application filed 4 September 2017 be dismissed.

2. That the Applicant pay the First Respondent’s costs fixed in the sum of $7,328.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 870 of 2017

DYP17

Applicant

And

MINISTER FOR IMMIGRATION BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

(Ex tempore)

1. The Applicant DYP17 is a national of Afghanistan.  In late 2012 he fled Afghanistan to India.  It would seem that he flew from Kabul into India.  He stayed there for about three weeks.  He then travelled from India to Malaysia and stayed there for 18 days.  From Malaysia he travelled to Indonesia and stayed in Jakarta for just over a month.  He then boarded a vessel and then on 28 November 2012 he arrived at Christmas Island as an unauthorised maritime arrival. 

2. His case was looked at after he applied for a Safe Haven Enterprise Visa in 2016.  The delegate of the Minister declined to give the Applicant such a visa on 2 November 2016.

3. Because of the fact that this was a fast track decision, the matter was given to the Immigration Assessment Authority (“the IAA”) to review on 4 August 2017.  The IAA decided to affirm the decision not to grant DYP17 a protection visa. 

4. DYP17 has asked this Court to judicially review that decision of the IAA.  In short, the claims of DYP17 were that he was an ethnic Hazara and a Shia Muslim who originated from Kharizac in the Shekiay Pasa District of Parwan Province in Afghanistan.

5. His family grew tobacco and the Applicant had been managing the business and had sold tobacco to a person known as Mr E.  Mr E was supposedly a powerful Pashtun warlord from the neighbouring Ghorband District.

6. The Applicant said that people had no choice but to sell to Mr E because they were afraid of him and also because the roads from the district to Kabul and other parts of Afghanistan were dangerous. 

7. In early 2011, the Applicant said that he stopped dealing with Mr E and he began supplying tobacco directly to buyers in Kabul.  He said that he also collected tobacco from his fellow villagers and transported this to Kabul and was able to make much more money.

8. He said that Mr E immediately tried to stop the Applicant from doing this.  The Applicant said that there was an incident in May of 2012 where a minibus that had his tobacco was stopped by a group of masked men.  Those men, in effect, tortured the driver and the driver ended up telling those persons that it was tobacco from the Applicant bound for Kabul.

9. The Applicant says that his driver was released but the minibus and tobacco were confiscated.  He believes that Mr E was the person behind this particular incident. 

10. The Applicant also talked about the dangers that there were between his village and Kabul because the Ghorband Valley, through which one travels to get to Kabul, has a number of Sunni Muslims who do not get on well with Hazara and there had been incidents of violence to Hazara Muslims who travelled through this area.

11. The Applicant also said that he was studying English and also assisting a local English teacher to conduct English language courses in the Kharizac village.  He said that he had arranged for a number of English textbooks or other books in English to go to that neighbouring village.  He said that there was six large boxes.  He loaded those into a passenger bus and sent them to the village.  These were confiscated by a group of masked men in the Ghorband Valley.  He said that these masked men were Taliban and the driver of the bus was tortured and admitted to the Taliban that the Applicant was the person behind the books going to the Kharizac village.

12. The Applicant said that he believed that Mr E and his militia groups were behind both of these particular incidents and that he believed that Mr E wanted to kill him.  He noted as well that Mr E was a Pashtun and Sunni Muslim as well and a supporter of the Taliban.  That was why he left Afghanistan and he feared that if he returned to Afghanistan he would be seriously harmed, mistreated and killed for those reasons. 

13. The IAA was given a number of submissions by the Applicant and in the beginning of the reasons given by the IAA, the IAA went through why it accepted some information and did not accept other information.  The IAA then went through all of the claims and noted that the Applicant had certainly not been consistent. 

14. The Applicant in his original interview had not spoken about the tobacco, had not spoken about the English books, had not mentioned Mr E.  The Applicant explained why that was but the explanation was not sufficient for the IAA.

15. The IAA also went through the other aspects of the claim and ended up concluding that they did not accept the Applicant as a witness of truth with regard to the claims of the tobacco being confiscated by Mr E or the books being subject to some form of ambush by the masked Taliban. 

16. However, the IAA did accept that the Applicant did have genuine fears for his safety with regard to the prospect of travelling from Kabul to his home area.  The IAA went through very thoroughly all of the country information that spoke of the dangers along the roads that would lead from the Applicant’s village or province through to Kabul.

17. In the end the IAA came to the view that the Applicant could be returned to his home province and that there would not be any persecution or serious harm that would come to him and that if the Applicant needed to travel to Kabul he could fly to that area.  Therefore, the IAA concluded that the Applicant didn’t meet the requirements of the definition of refugee and that also there were not substantial grounds for believing that as a necessary and foreseeable consequence of his being returned from Australia to Afghanistan that there was a real risk that the Applicant would suffer significant harm. 

18. The grounds of this application have been amended and I have allowed such amendment.  Ground 1 is as follows:

    1. The IAA misconstrued and, therefore, misapplied the terms “information” and “new information” in s.473DC(1) of the Migration Act.

    Particulars

    (a) the error in categorising claims that the applicant feared persecution at the hands of Sunni militant groups as “information” and “new information”.

19. In the reasons given by the IAA at paragraph 3, the IAA says that they had looked at the material which were responses to the findings of the delegate which amounted to argument with the delegate’s decision. 

20. The IAA then said this: 

    It was also submitted that the applicant fears harm not only from the Taliban but also from the ISIS and other Sunni extremists including Hezbi Islami and Mr E also other armed paramilitary groups, and that the reason for this included is being a returnee from the west. Although the applicant had previously claimed to fear harm from Mr E and his militias, and had indicated that these militias were the Taliban and that he feared the Taliban more generally, he had never stated that he feared ISIS (Islamic State), or Hezbi Islami, or other armed paramilitary groups, nor had he indicated that the reason for this included his being a returnee from the west, and this is new information/

21. It is the categorisation of that as new information that is the basis for ground one.  The argument stems from what the High Court has said in the matter of Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16 (18 April 2018).

22. At paragraph 24 the High Court said:

    [24] The term “new information” must be read consistently when used in ss 473DC, 473DD and 473DE as limited to “information” (which may or may not be recorded in a document), in the ordinary sense of a communication of knowledge about some particular fact, subject, or event that meets the two conditions set out in s 473DC(1)(a) and (b)…

23. The Applicant contends that this is somewhat of a “game changer” because it has confined information as being a communication of knowledge about some particular fact, subject to event. 

24. The submission made by the Applicant is that this was not information.  This was a claim.  This was speculation.  This was a feeling.  This was nothing more than subjectively what the Applicant was feeling.  The submission says that what the High Court has now said means that the old way of looking at these matters, that has been determined beforehand in authorities such as CVK16 v Minister for Immigration and Border Protection [2017] FCA 1434 are now no longer the law.

25. In effect, CVK16 (Supra) spoke of new claims necessarily must involve new information and, therefore, the statutory prohibition against receiving new information also applies to new claims because it pertained to different fears.  The Applicant here says that this is not information.  What the IAA has done is now committed an error in claiming as it did in paragraph 3 that this was new information.

26. However, in my view, I do not regard the claim as not being information.  It clearly is information.  It is information that the Applicant fears harm.  The reason that he fears harm is because of ISIS; because of Hezbi Islami; because of other armed paramilitary groups; because of being a returnee from the west.

27. That is information because it is a fact.  It is a fact that the Applicant fears returning.  It is a fact because it gives out reasons as to why it is that he fears.  It is consistent with what the High Court has said because it is communication of knowledge about a particular fact, a particular subject, a particular event.  That is, that he fears harm because of those matters that I have listed. 

28. Because he had not imparted that knowledge before, it fits into the definition of new information and, thus, is subject to the prohibition on new information in s.473DC. It was open, therefore, to the IAA to find as they did that they would not accept the new information.

29. However, it is clear as well, even though they have not accepted that this is new information, the IAA has looked at a number of those matters anyway because the IAA ended up looking at the genuine fear that the Applicant has said that he has in travelling roads. At paragraph 29, the IAA has made findings consistent with the country information, that it already had, as to what the state of the roads are and what paramilitary groups are the ones who are, in effect, attempting to control those roads and cause the instability that the IAA has found existed. 

30. As I say, that is simply an aside because the ground really is that the IAA has made an error in finding that this is new information.  I do not agree that such an error has been made and, therefore, if I don’t find that there is an error, it can hardly be characterised as a jurisdictional error.  For those reasons ground one fails. 

31. Grounds two and three have been abandoned but ground four is as follows:

    4. The IAA decision was legally unreasonable in that it failed to consider whether it should invite the applicant to give new information whether pursuant to s 473DC(3) or otherwise as to whether upon return to his home area of Shekiay Pasa in Harlan District of Afghanistan there would be a need for him to travel on roads outside that area.

    Particulars

    (a)The IAA found the applicant would not have a well-founded fear of persecution were he to return to his home area and that he could travel safely to that area. 

    (b)And accepted that he would not take road trips outside that area for fear of serious harm if he did undertake such travel.

    (c) It found that:

    (i)driving on roads to Kabul was not a characteristic fundamental to the applicant’s identity conscience or political opinion, and that

    (ii)It was not persuaded that there would be a need for the applicant to make such trips.

    (d) As it was necessary for the IAA to:

    (i)Consider the impact on the applicant of his return to his home area, including for the purposes of section 36, subsection 2(aa) of the Migration Act whether it would be reasonable to so return. And that question involved,

    Whether it would be necessary for him to travel by road outside his home area for the purpose of his business or otherwise and that in turn involved, and

    Facts and circumstances within the personal knowledge.

32. It was submitted that it was legally unreasonable for the IAA not to at least consider seeking information from the Applicant as to whether there would be a need for him to travel on roads between there and Kabul were he to return to his home area.

33. The submission relies on a number of matters that have been looked at by the courts, in particular, a matter of Minister for Immigration and Border Protection v CRY16 & Anor (2017) 253 FCR 475 where the court said that the authority knew or must be taken to have known that the question of relocation had not been considered by the delegate. The authority must also have been taken to have known that, the question of relocation depending on the particular circumstances of the respondent as found by the primary judge, there was nothing in the interview with the delegate that concerned the question of relocation. Therefore, at paragraph 82:

    82. Our conclusion is that it was legally unreasonable, in the circumstances, not to consider getting documents or information from the respondent. The legislature is to be taken to intend that the Authority’s statutory power in s 473DC will be exercised reasonably. The failure to consider the exercise of that discretionary power lacks an evident and intelligible justification in circumstances where the Authority knew that it did not have, but the respondent was likely to have, information on his particular circumstances and the impact upon him of relocation to Beirut. The Authority did not have that information because the question of relocation, either at all or to Beirut, was not explored, or the subject of findings, by the delegate. The Authority’s failure to consider the exercise of that discretionary power meant that it disabled itself from considering what was reasonable, in the sense of “practicable”, in terms of relocation. In our opinion, as a consequence, the review by the Authority under s 473CC miscarried for jurisdictional error.

34. The authority did not have that information because the question of relocation either at all or to Beirut was not explored or the subject of findings by the delegate. 

35. In this matter the Applicant submits that the delegate had considered that it was dangerous for the Applicant to return to his home area and instead found that it was reasonable for the Applicant to relocate to Kabul.  The IAA instead said that it was not satisfied that the Applicant could not be returned to his home district because he would not face a well-founded fear of persecution, nor would he face serious harm if returned.  The IAA looked at the fact that the Applicant could stay in his home district and would not have to travel along those roads and, if he did need to go to Kabul, he could fly.

36. The criticism is that whether or not the Applicant did need to use the roads or could afford to be able to fly to Kabul if needed were matters that were not within the knowledge of the IAA and would be within the knowledge of the Applicant. Therefore, it was unreasonable not to use the power under s.473DC(3), to ask the Applicant to give that information to the IAA.

37. In the decision of the IAA at paragraph 14, the IAA has said:

    14. At the TPV interview the applicant was asked what route he was travelling to Kabul.  The applicant said he was travelling through the Ghorband Valley because he was transporting and selling tobacco and that he hired a vehicle and a driver to do this.  The delegate asked the applicant to give a clear answer as to how often he himself did this.  The applicant said that it depended on how much product there was, and that at the end of the season when they were harvesting he might go many times.  He said he was doing this between 2010 and 2012 but that even without this business he would travel to Kabul every now and then if he got sick because they did not have a doctor in the area.  He said that most of the time he was not travelling with the vehicle and he hired a driver, but that sometimes he would go to Kabul to collect money.  The applicant did not give clear indication of how often, or how many times, he had travelled to Kabul himself in the years preceding his departure.

38. It is clear that the Applicant had made the claim that the roads were not safe in his initial application for the SHEV visa and that comprised a portion of the material that the Applicant put before the delegate. 

39. It is clear also that he was asked a number of questions about this matter from the delegate and the IAA, having reviewed the whole audio recording of the interview between the delegate and the Applicant. came to the conclusion that the Applicant did not give a clear indication of how often or how many times he travelled to Kabul himself in the years preceding his departure. 

40. In those circumstances, it does not seem to me that there was any particular information that was not before the IAA on this matter.  The Applicant had had plenty of opportunity to put the material before the delegate and had put what it is that he could.  The Applicant was asked a number of times about this matter and the sum total of what was before the IAA was illustrated in paragraph 14. 

41. With regards to the financial capacity of the Applicant, it is clear that he has said that he was making money and more money once he started dealing with the tobacco buyers in Kabul.  There was only one time that that the Applicant claimed that his shipment to the buyers in Kabul was stopped and the IAA did not accept that such an incident happened, in any event. 

42. The evidence before the IAA was that the business is still being conducted by the Applicant’s brother in Afghanistan.  The evidence of the Applicant was, between 2010 and 2012, there were many travels to Kabul though it would seem on the own evidence of the Applicant that there were many times so the vast majority of times or the majority of times he was not the person who was driving.  It was a person that had been hired by him to do so.  When one looks at all of that information one then has to look at what it was that the IAA ended up finding. 

43. At paragraph 29 the IAA said this:

    29. On the evidence, Afghans who have returned from western countries may be at risk of harm if evidence of their having lived in western country is discovered when they encounter Taliban, or some other insurgent AGE, in an insecure area like some of the districts between Kabul and the Hazarajat. Ghorband and Jalrez are insecure areas of this kind.  However, DFAT reporting which was before the delegate indicates that Hazaras unwilling to take the risk of travelling by road and able to afford the cost have the option to fly on a weekly service from Kabul to Bamyan for a fare of approximately USD100.  As has been noted above, service providers delivering humanitarian assistance have been accessing the applicant’s district of Surkh-e Parsa, and also to Shekhali, from Bamyan rather than from Kabul owing to the security problems affecting the roads in Parwan’s other districts.  Given that the applicant’s family’s tobacco continues to do business I am satisfied the applicant would be able to afford the fare for such a flight from Kabul to Bamyan even if he received no financial assistance from Australia following his arrival at Kabul’s international airport. 

1. Whilst it may be said that the Applicant was not asked and  he could have been in a position to give such evidence the IAA did have evidence from the Applicant, as I’ve said, as to what his financial situation was because of the way in which the business was being run.

2. It was then unnecessary for the IAA to consider using its power under s.473DC(3); that is, because it had sufficient information already before it. It was not unreasonable then for the Tribunal to act in the way that it has. The conclusions that the IAA have come to in paragraphs 33 and 34 are conclusions that were open to it on the evidence that was before it. The evidence that was before it was sufficient for it to make such conclusions.

3. In my view, the situations of this matter are totally different to the situation that obtained in the case of CRY16 (Supra). 

4. Therefore, that ground also fails. 

I certify that the preceding forty-seven (47) paragraphs are a true copy of the reasons for judgment of Judge Vasta

Date:18 October 2018