EDH17 v Minister for Immigration - [2018] FCCA 2965

FEDERAL CIRCUIT COURT OF AUSTRALIA

EDH17 v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 2965

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.473DD, s.473DC

Cases cited:

CSR16 v Minister for Immigration and Border Protection [2018] FCA 474

CRY16 v Minister for Immigration [2017] FCCA 1549

Applicant:

EDH17

First Respondent:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent:

IMMIGRATION ASSESSMENT AUTHORITY

File Number:

BRG 919 of 2017

Judgment of:

Judge Vasta

Hearing date:

3 October 2018

Date of Last Submission:

3 October 2018

Delivered at:

Brisbane

Delivered on:

3 October 2018

REPRESENTATION

Counsel for the Applicant:

Mr Black

Solicitors for the Applicant:

Angus Francis Lawyers

Counsel for the Respondent:

Mr McGlade

Solicitors for the Respondent:

Minter Ellison

ORDERS

The Application filed on 15 September 2017 as amended on 10 January 2018 and 12 September 2018 be dismissed.
The Applicant pay the First Respondent’s costs of and incidental to the application fixed in the sum of $7,328.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 919 of 2017

EDH17

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

(Ex tempore)

The Applicant, EDH17, is a national of Afghanistan who is 27 years of age. He arrived in Australia by boat as an unauthorised maritime arrival on 28 March 2013. He was invited to make an application for a safe haven enterprise visa (“SHEV”) which he did on 16 March 2016.
On 16 January 2017, the delegate of the Minister refused that application. The delegate’s decision was a fast track decision, and so, therefore, the matter was referred to the Immigration Assessment Authority (“the IAA”). The IAA affirmed the decision not to grant the Applicant a protection visa on 22 August 2017.
The IAA said that the background of the Applicant could be summarised as this: that he was an Afghan citizen of Hazara ethnicity; he was born in the Qarabagh district in Ghazni province, and he practices Shia Islam. His mother is deceased; his father and one married sister live in Ghazni city. One sister and one brother are in Mazar-e-Sharif, and three brothers are living and working in Saudi Arabia, and three sisters and their families live in Pakistan and the Applicant lived in Qarabagh when he was young, during the time the Taliban was in power.
During the rule of the Taliban, men of the village were taken away to undertake construction work, and, if they did not follow, they were beaten. The Applicant claimed that his eldest brother was taken on at least two occasions and forced to work. When the Applicant was about seven or eight years of age, his family decided to move to Ghazni city where his father ran a business selling firewood; however, due to the control of Ghazni city and harassment by the Taliban, they were unable to work due to a fear of being killed.
Two of his elder brothers went to Pakistan separately, and, after a year in Ghazni city, the Applicant, his parents, two brothers and one of his sisters left Ghazni city and travelled to Pakistan.
This would mean that the Applicant was about nine or 10 when he left for Pakistan. He stayed in Pakistan until he departed there for Australia. The Applicant claims that, about two years after the family arrived in Pakistan, he escaped an abduction attempt from a Pashtung gang there and that he and others were subject to harassment from the Pakistan Police.
He was forced to pay bribes to them on two or three occasions, and he said there was also increased targeting of Hazaras in Pakistan. He said that he fears being harmed by the Taliban or Daesh upon any return to Afghanistan as a Shia Hazara, and he fears that he will be killed if he refuses to join or support Daesh or the Taliban. He also fears harm because he has lived in a western country and in Pakistan for a significant period of time, and, therefore, he will be perceived as a spy. He also fears returning to Pakistan.
The IAA looked at all of those matters and, whilst I will not go into everything that the IAA looked at because part of that will be mentioned later in these reasons, the IAA came to the conclusion that they were not satisfied that the Applicant faces a real chance of harm upon return to Mazar-e-Sharif. In effect, The IAA said that, whilst going back to his original birthplace may be of danger, he can relocate to Afghanistan and to the city of Mazar-e-Sharif, and there he will not have a well-founded fear of persecution. The IAA noted that he does have a brother and sister there.
When looking at the complementary protection criteria, the IAA went through a number of country information reports, coming to a conclusion that they were satisfied that it was reasonable for the Applicant to relocate to Mazar-e-Sharif where he does not face a real risk of significant harm; therefore, he did not meet the criterion of the complementary protection obligation.
The Applicant filed an originating application in this Court on 15 September 2017. He amended it on 10 January 2018 and further amended it again on 12 September 2018. The grounds of this application can be broken up into three aspects; one of which is a compound aspect.
The first ground is:
1A. The Immigration Assessment Authority (IAA), the Second Respondent, fell into jurisdictional error in determining whether, under s 473DD(a) of the Migration Act 1958 (Cth) (the Act), there were exceptional circumstances to justify the IAA considering new information that had been provided by the Applicant.
1B. The IAA fell into jurisdictional error in failing to consider, in substance, whether the New Information “could not have been, provided” before the delegate’s decision for the purposes of s 473DD(b)(i) or, alternatively, was “credible personal information” for the purposes of s 473DD(b)(ii) of the Act.
What this stems from is the Applicant wanting to put further information before the IAA. The delegate had considered that the Applicant could relocate safely to Mazar-e-Sharif and spoke of the brother and sister being there. The Applicant placed material before the IAA with some further information at paragraph 5 of the reasons:
5. The submission also provides further information regarding the circumstances of the applicant’s family members who were living in Mazar-e-Sharif claiming that the applicant’s sister and her family are displaced persons who are struggling to support immediate family members and his brother when he arrived in Mazar-e-Sharif was not able to obtain assistance from his sister and would not be able to assist either….
That was the information that was said to be new information. The other information was that:
7…the applicant is in a de facto relationship with a non-Muslim woman in Australia and claims that that relationship is a breach of Islamic norms, which the applicant’s family are now aware of through the applicant’s social media postings. The applicant’s family have seen and negatively responded to his lifestyle and if he were to return he would not have access to meaningful support in Mazar-e-Sharif.
Both those matters were matters that were not before the delegate. For those matters to be considered by the IAA, they must comply with the provisions of s.473DD which reads:
473DD Considering new information in exceptional circumstances
For the purposes of making a decision in relation to a fast track reviewable decision, the Immigration Assessment Authority must not consider any new information unless:
(a) the Authority is satisfied that there are exceptional circumstances to justify considering the new information; and
(b) the referred applicant satisfies the Authority that, in relation to any new information given, or proposed to be given, to the Authority by the referred applicant, the new information:
(i) was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or
(ii) is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant’s claims.
It is clear when one looks at this section that there are two limbs to the consideration of new information:
a)firstly, that there have to exceptional circumstances and, most importantly,
b)that the information was not or could not have been provided to the Minister before the decision; or is credible personal information which was not previously known and had it been known, may have affected the consideration of the Applicant’s claims.
What has been said here is that the IAA has had too narrow a focus in looking at whether there are exceptional circumstances that exist. The IAA was not satisfied that exceptional circumstances existed and it said so. With regard to the information about the brother and sister, the IAA noted that the fact that the brother and sister live in Mazar-e-Sharif was before the delegate. It was not new information; however, the information regarding the sister’s and brother’s claimed circumstances was not before the delegate.
When the delegate asked the Applicant at the SHEV interview why his sister was residing in Mazar-e-Sharif, he indicated that his sister moved there after she married because her husband resided there.
The Applicant was also asked during the interview whether he could relocate to Mazar‑e‑Sharif where his sister and brother were residing but gave no indication of their circumstances, instead stating that he would be viewed as a Pakistani due to his language.
The IAA noted that although the Applicant had no representation at the interview, he was on notice that relocation to Mazar-e-Sharif was a consideration, and given that he stated he is in regular contact with all his siblings, the IAA considered that he would have been aware of his sister’s circumstances and his brother’s circumstances.
He was aware that if he provided further information, prior to a decision, it would be considered. The IAA noted that the Applicant did, in fact, provide further information in relation to another matter after the SHEV interview and before the decision was made. The IAA looked at the whole of those circumstances and said:
6…I am not satisfied that the information could not have been provided to the Minister prior to a decision…
Whilst the IAA has stated factors which could be seen as pertaining to s.477DD(b) these are not the only circumstances that have been considered.
As was pointed out during argument, the concept of exceptional circumstances, whilst not codified, must necessarily have its normal meaning, which is that the circumstances are out of the ordinary; that they are something which makes those circumstances contrary to what would normally be considered.
It seems to me that there has to be something that is exceptional; that there is something that is out of the ordinary in looking at those facts that would cause that information to be information that the IAA now says it should consider.
The IAA has, in its reasons, said in the last sentence of paragraph 6:
6…I am not satisfied there are exceptional circumstances for considering it.
The IAA also said – though, it seems to me, it did not have to – has said:
I am not satisfied that the information could not have been provided to the Minister prior to the decision nor has the applicant satisfied the IAA that it is credible personal information.
Again, the IAA has considered the matters in s.473DD(b) and then considered everything, as a whole, that is not only within subparagraph (b) but outside of subparagraph (b) and found, as far as subparagraph (a) is concerned, that there are no exceptional circumstances to justify considering the new information.
It seems to me that that conclusion was open to it.
With regard to the information about the de facto relationship, the IAA noted that, at the SHEV interview, the Applicant advised that he had moved house a couple of months prior to the interview, and one of his flatmates was a female whom he only referred to as his girlfriend after being directly asked by the delegate.
When asked about their living circumstances, the Applicant stated that they occupied separate rooms in the house but stated that she had gone away and before leaving had left her possessions in the Applicant’s room and put her room up for rent on a website. The IAA noted that this discussion during the SHEV interview indicated that the existence of some form of relationship or friendship between the Applicant and his flatmate was before the delegate; however, the information regarding the development of the relationship into a de facto relationship, the social media posts and the claims arising from the relationship were new information.
The social media posts, the comments, the photographs that were all on social media were posted in December 2016 prior to the delegate’s decision. They indicate that the alleged change in the relationship also occurred prior to the delegate’s decision. The Applicant was aware that he could provide additional information relevant to his claims prior to a decision being made but did not raise any claim about the change of the nature of the relationship. The IAA noted that that delay in providing this information also raised doubts about its credibility.
The IAA said this:
I am not satisfied there are exceptional circumstances for considering it nor am I satisfied that the information could not have been provided to the Minister prior to a decision or that it is credible personal information.
What is claimed in this case, by the Applicant, is that the IAA has used the wrong test in looking at s.473DD(b)(ii). The need for there to be credible personal information which was not previously known and had it been known may have affected consideration does not mean that the information must be believed prima facie.
According to authority of CSR16 v Minister for Immigration and Borer Protection [2018] FCA 474, all which is needed for this to be personal credible information is that it is capable of being believed, and if it had been believed it could have changed the decision. The Applicant submits that the IAA has failed to use the right test; that is, because all it has said is the delay in providing this information also raises doubts about its credibility; and everything else it had said, about the relationship, really went as to why it doubted the credibility, without ever coming to the conclusion that it is information that could not be believed.
The submission continues that, by simply raising doubts, the IAA must necessarily be saying that it was capable of being believed because it has not said anything to the contrary. If it is capable of being believed, then it has, according to the Applicant, passed the first hurdle in subsection (b)(ii).
Such is an argument that does have some attraction, but it seems to me that it really is not a matter that need concern the Court for this reason: that even if there were an error, it is not an error that could actually mean that the result is different; that is, because the IAA has been very clear that they have found that they are not satisfied that there are exceptional circumstances for considering it.
Once the IAA has come to that conclusion there is no need to look any further. The fact that this IAA did do so is a credit to it, because it has been extremely thorough, but once that decision has been made, then the IAA, in finding that there are no exceptional circumstances, are, pursuant to s.473DD, prohibited from looking at the new information. I cannot see that there has been any jurisdictional error with regard to this matter. Given that Grounds 1A and 1B really were two sides of the same coin, it seems to me that Ground 1B also fails.
Ground 1Dstates:
1D. Alternatively, the IAA’s failure to consider getting further documents, information or comment from the Applicant in regard to the Applicant’s relationship was legally unreasonable.
The Applicant says that the statutory power in s.473DC must be exercised reasonably, and that is the power that the IAA may get any documents or information that were not before the Minister and that the Authority considers may be relevant.
The section also says that the IAA does not have any duty to get, request or accept any new information, and the IAA may, without limiting the first subsection, invite a person to give new information.
The argument by the Applicant in this matter was simply that, because there had been the allegation of such a change in his relationship status, the IAA should have looked at this aspect in far more detail than it did. The Applicant says that the IAA should have exercised the discretion in s.473DC in a way that would have meant that this information was obtained. The Applicant relies on what was said in the decision of CRY16 v Minister for Immigration [2017] FCCA 1549.
It seems to me that the power under s.473DC must be exercised properly. The information about the relationship was simply some information that could have affected the reasonableness of the ability of the Applicant to relocate to Mazar‑e‑Sharif. The existence of the de facto relationship was simply a factor; it was not determinative of the issue in question which was, could the Applicant reasonably relocate to Mazar‑e‑Sharif.
For the decision of the IAA not to get such material to be legally unreasonable, it must be that no other decision‑maker, on all of the circumstances before it, could ever have come to the decision that the IAA came to, which was not to exercise its power. I cannot see in these circumstances how the decision made by the IAA not to exercise power in s.473DC was not open to it. Therefore I am not satisfied that there has been jurisdictional error.
The final ground has caused me some consternation. It is this:
1E. The decision of the IAA is affected by jurisdictional error because there was a failure to comply with s 473CB and s 473DB of the Act leading to a constructive failure to exercise jurisdiction.
The gist of this complaint is that the IAA has overlooked country information. In deciding whether or not it was reasonable for the Applicant to relocate to Mazar‑e‑Sharif, the IAA had to go through quite a deal of country information to ensure that there was no risk of serious harm for a person, in the circumstances of the Applicant, to relocate to Mazar‑e‑Sharif. In doing so, the IAA had to have regard to reports as to the security situation there.
In paragraphs 30 to 33 of the reasons, the IAA goes through the country information that it has about the incidents that have occurred there. In paragraph 30, it says:
…Mazar‑e‑Sharif is regarded as one of the safest cities in Afghanistan, with the relative security of a province being attributed to a monopoly on power, even in the province’s most remote regions, held by an ethnic-Tajik governor and a former warlord, Atta Mohammad Noor who in June 2015 agreed to work with First Vice President Abdul Rashid Dostum to restore security to northern Afghanistan.
Further in that paragraph, it said:
…EASO indicates that Mazar‑e‑Sharif counted the lowest number of civilian victims although there were some high profile attacks in 2015 and 2016 which affected some residents. The evidence indicates that Balkh Province continues to have a strong military and police presence that has maintained security due to the power base of the Balkh governor and his alliance with Vice President Dostum.
31. EASO reported that there had been sporadic attacks in Mazar‑e‑Sharif including on the Indian and German consulates in 2016, a court complex in April 2015, a police vehicle in December 2015 as well as the targeted killing of the relative of a provincial council member and a government official in 2015. In November 2014, October 2015 and August 2016t small bombs exploded in local markets but the targets were not clear…

The IAA said that they accepted that civilians had been harmed in some of those incidents, however the incidents have been infrequent and have been primarily aimed at government or international community targets with whom the Applicant, as a Shia Hazara, has not been directly associated and with whom he does not have an imputed profile as a government affiliate.
In paragraph 32, the IAA noted:
…I accept that there have been attacks on Shia Hazaras on the roads in contested districts of Balkh during 2015. However Mazar‑e‑Sharif is a large city where sectarian violence on the basis of religion or ethnicity has been rare and apart from a co-ordinated attack on Shias commemorating Ashura in Mazar‑e‑Sharif in December 2011…there was no evidence that ethnic or religious groups have been deliberately targeted in Mazar‑e‑Sharif itself since 2011.
In paragraph 33, the IAA said:
… there were attacks on Shias in Kabul in 2016, all of which have been condemned by the Taliban who have denied any involvement… There was also an attack in Balkh province on 12 October 2016 approximately 20 kilometres from Mazar‑e‑Sharif, when a bomb exploded outside a mosque….EASO in early 2016 indicated the Taliban and Islamic Movement of Uzbekistan (IM) were active in parts of Balkh Province… In March 2016, Balkh’s governor stated there were fighters loyal to Islamic State in the province…According to EASO in November 2016 there was evidence of an ISKP presence in the southern districts of Balkh province where the governor conducted a clearing operation in March 2016.
At the end of that paragraph, the IAA said this:
…I accept that the October attack near Mazar‑e‑Sharif targeted Shia worshippers, however I am not satisfied the evidence indicates that ISKP, IMU or the Taliban were involved or that the incident is indicative of the onset of a sectarian campaign in Balkh. Nor am I satisfied it is indicative of a risk to Shia Hazaras living in Mazar‑e‑Sharif itself. I am satisfied that the isolated incidents in or near Mazar‑e‑Sharif in 2011 and 2016 do not indicate the applicant faces a real chance of persecution as a Shia Hazara upon return to Mazar‑e‑Sharif in the reasonably foreseeable future.
In paragraph 51, when looking at the complementary protection criteria, a lot of what was said was repeated, but the IAA said this:
…I am satisfied that there is a strong military presence in Mazar‑e‑Sharif and government and security forces continue to maintain effective control in Mazar‑e‑Sharif ensuring the area’s ongoing stability and security. On this basis I am not satisfied there is a real risk of the applicant facing significant harm on the basis of the general security situation in Mazar‑e‑Sharif for any reason. I am not satisfied there is a real risk of the applicant suffering significant harm on return to Mazar‑e‑Sharif.
The Applicant submits that what has happened here is that there has been a failure to consider all of the material. The material that was not looked at, according to the Applicant, was a number of documents that are helpfully annexed to the affidavit of Craig Andrew Clothier that had been filed in this Court on 15 May 2018.
There have been nine matters that have been highlighted by the Applicant in the written submissions, however there has really only been reliance upon three, that is:
a)at page 153 of the affidavit, there was evidence of an attack upon a court building where judges, prosecutors and judicial staff seem to have been targeted with 14 deaths and 47 others who were injured and some 161 civilian casualties. That was an attack on the Balkh Provincial Prosecution Office in Mazar-e-Sharif City;
b)on page 157 of the affidavit, that in 2015 UNAMA observed a sharp increase in the abduction and killing of civilians of Hazara ethnicity by anti‑government elements abducted at least 146 members of the Hazara community in 20 separate incidents. All but one incident took place in areas with mixed Hazara and non‑Hazara communities in Balkh; and
c)the third one, at pages 197 to 198 of the affidavit, that there was evidence regarding an attack near Mazar-e-Sharif on 12 October 2016 where 14 people were killed in October in a bomb attack outside a mosque in the northern province of Balkh where 30 people were wounded, but that report referred to an emerging pattern of sectarian violence.
The Applicant says because there was no acknowledgement of the 14 civilians that were killed in the court attack, that the IAA has overlooked this incident in looking at what the security arrangements are. I find that that is a difficult submission to maintain. Whilst it is true that there was no reference to 14 people being killed, there certainly was reference to a 2015 attack on a court; there was certainly reference to the bombing 20 kilometres away from Mazar‑e‑Sharif; and, there was certainly mention of a number of other attacks as well.
Simply because the report talks of an emerging pattern of sectarian violence does not mean that the IAA needs to accept that part of the country information. In fact, the parts that the IAA were looking at really focused around Mazar‑e‑Sharif. The only incident that can be looked at as occurring within Mazar‑e‑Sharif apart from the small bombs that had gone off in the marketplaces, was the attack on the Provincial Court building that targeted judges and prosecutors.
The IAA was clearly only looking at Mazar‑e‑Sharif and it would seem has certainly looked at that information. This is because it has said in paragraph 33 that they were looking at the October attack but the IAA was not satisfied that the incident was indicative of the onset of a sectarian campaign in Balkh.
Considering that the information had spoken about there being “an emerging pattern of sectarian violence”, it seems to me, this was certainly looked at by the IAA; it just simply did not accept the evidence when it looked at not only that report, but all of the other reports. In my view, the criticism cannot be sustained.
In any event, I do accept what Mr McGlade had submitted to me, that, even if there was some form of error in regard to not looking at or not talking about 14 deaths on the court attack, such would not constitute a jurisdictional error because it was not a pivotal finding upon which the decision rested.
Therefore, I am not satisfied that any jurisdictional error has been established with regard to Ground 1E.

I certify that the preceding fifty-six (56) paragraphs are a true copy of the reasons for judgment of Judge Vasta

Date:25 October 2018