Egw17 v Minister for Immigration
[2019] FCCA 653
•15 March 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| EGW17 v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 653 |
| Catchwords: MIGRATION – Visa – protection visa – whether Authority ignored relevant material – whether decision illogical or irrational – whether decision unreasonable – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.5J and 473DD |
| Cases cited: Sun v Minister for Immigration and Border Protection [2017] FCA 1270 NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 |
| Applicant: | EGW17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | ADG 392 of 2017 |
| Judgment of: | Judge Heffernan |
| Hearing date: | 5 February 2019 |
| Date of Last Submission: | 5 February 2019 |
| Delivered at: | Adelaide |
| Delivered on: | 15 March 2019 |
REPRESENTATION
| Solicitors for the Applicant: | Mr W Markwell for W J Markwell & Associates Lawyers |
| Solicitors for the Respondents: | Ms C Stokes for the Australian Government Solicitors |
ORDERS
The application is dismissed.
The applicant is to pay the first respondent’s costs.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT ADELAIDE |
ADG 392 of 2017
| EGW17 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
This is an application for constitutional writs to be issued with respect to a decision of the Immigration Assessment Authority (‘IAA’) dated 23 August 2017. That decision affirmed an earlier decision of a delegate of the Minister refusing to grant the applicant a Safe Haven Enterprise visa (‘the visa’).
At the hearing before me, the applicant was represented by counsel and I gave leave for the application to be amended. The matter proceeded before me on the following grounds:
“1.The Second Respondent has made a number of jurisdictional errors in a specific area or the decision. These are:
(i)The Second Respondent has ignored relevant material;
(ii)The Second Respondent has made a decision that is illogical and irrational;
(iii)The Second Respondent has made a decision that is so unreasonable that no reasonable decision maker would have made such a decision.
PARTICULAR Ground 1(i)
The Second Respondent has not considered the material from Professor William Maley. This material asserts that the conclusions made by the DFAT Thematic Report Hazaras in Afghanistan, 8 February 2016 are that ‘DFAT is not aware of any credible evidence that everyday Hazaras are being systematically targeted ... such conclusions are now completely untenable. This is in relation to the information at [34] and [35] of the Decision.
The Applicant faces a ‘real risk’ of serious harm should he return to Afghanistan.
PARTICULAR Ground 1(ii)
The Second Respondent states that ‘... it is not satisfied that there is a real chance that the Applicant will suffer serious harm in Kabul from an insurgent group, like Islamic State or the Taliban, for reason of him being a Shia Hazara, now or in the foreseeable future.’ The Second Respondent sets out the dates that atrocities were carried out against Shias/Hazaras, namely in December 2011, February 2014; October 2015; 23 July 2016; 11 October 2016 and 21 November 2016.
The Second Respondent has made a decision that no logical or rational decision maker could arrive on the same evidence.
The Applicant again faces a ‘real risk’ of serious harm should he return to Afghanistan.
PARTICULAR Ground 1(iii)
In relation to Ground 1(iii) the Applicant relies upon the information in the Particulars for Grounds 1(i) and 1(ii) as set out above.
2.The Applicant refers to the Decision of the Second Respondent dated 23 August 2017 and marked with the letter “A” and annexed to the Applicant’s Affidavit dated 22 September 2017.
3.The Applicant refers to the Affidavit sworn and filed 3 December 2018 with two Annexures marked with the letters “WJM-1” and “WJM-2” respectively.”
(footnotes removed)
Background
The background to this matter and the basis for the IAA decision are not in dispute between the parties and accordingly I have summarised the relevant matters from the outline of submissions of the first respondent.
The applicant is a citizen of Afghanistan from the Kabul province. He is of the Hazara ethnicity and is a Shia Muslim. The applicant arrived in Australia on 28 March 2013 as an ‘unauthorised maritime arrival’. He applied for the visa on 7 May 2016. He is properly regarded as a ‘fasttrack applicant’.
The basis of the applicant’s claims was that he feared being seriously harmed or killed by the Taliban on the basis of his ethnicity and because that organisation had previously targeted his family. One of his brother’s had been killed by the Taliban during the second year of their rule in Kabul and another brother went missing in 2011.
The application was refused by the delegate on 18 November 2016. The delegate concluded that the applicant did not face a risk of persecution for any of the claimed reasons. As the applicant was a fasttrack applicant, his matter was immediately referred to the IAA on 23 November 2016.
The applicant provided the IAA with a written submission annexing new information. The new information was a certified copy of his uncle’s death certificate and two reports by Professor Will Maley dated 22 November 2016 and 22 December 2016.[1] Some months later, the applicant provided the IAA with further new information in the form of redacted clinical records for patients treated by international health and medical services in 2014, and a psychological report from a psychologist dated 6 July 2017.
[1] Court Book (‘CB’), pp 157 – 174.
The IAA affirmed the delegate’s decision on 23 August 2017.
With respect to the new information, the IAA concluded that there were exceptional circumstances that justified it considering the new information pursuant to s.473DD of the Migration Act 1958 (Cth) (‘the Act’). In that regard, it considered the death certificate, some country information that post-dated the delegate’s decision, and the two reports of Professor Maley, as well as the psychological report. The IAA declined to consider country information that pre-dated the delegate’s decision and which was not before the delegate. In addition, the IAA did not have regard to a 2016 report about the mental health system in Afghanistan or the IHMS records.
The IAA accepted that the applicant’s eldest brother was killed in around 1998 by the Taliban for reasons related to his ethnicity. However, the applicant had not claimed a fear of future harm in Afghanistan directly in connection with the death of his eldest brother. The IAA was not satisfied that the applicant faced a real chance of serious harm on that basis, upon his return to Afghanistan, now or in the foreseeable future.
The IAA accepted that the applicant’s uncle was killed by the Taliban in 2009 in the circumstances claimed. It did not accept that the applicant’s nephew, elder brother, and his father were targeted by the Taliban following the death of his uncle.
The IAA found many discrepancies in the evidence which led it to conclude that the applicant was not recounting a genuinely lived experience. It had regard to the reasons put forward by the applicant as to why there may be inconsistencies in his evidence but it was not persuaded that those reasons adequately accounted for the discrepancies. It did not accept that his family were targeted by the Taliban, or any other person or group. It accepted that the applicant’s brother went missing in 2011, but it was not satisfied that he was targeted by the Taliban due to his familial relationship to his uncle. It did not accept that the applicant’s father was a person of adverse interest to the Taliban prior to, or following, his death in 2012 and it rejected the applicant’s claim that he was threatened by a Pashto speaking man in 2012.
The IAA was not satisfied that there was a real chance the applicant would suffer serious harm in Kabul from an insurgent group, like Islamic State or the Taliban, for reason of him being a Shia Hazara, now or in the foreseeable future.
The IAA also was not satisfied on the evidence that returnees like the applicant are targeted in Kabul by insurgents or that he would be targeted on return to Kabul as a Shia Hazara, due to an imputed association to the Afghan government or similar organisation, or as a returnee asylum seeker.
It was not satisfied there were any barriers that would deny the applicant’s capacity to earn a livelihood in Kabul, that he would experience significant economic hardship, or denied access to basic services (including mental health services) that would threaten his capacity to subsist, now or in the foreseeable future.
Considering the applicant’s claims individually and cumulatively, the IAA concluded that he did not have a well-founded fear of persecution within the meaning of s.5J of the Act and that he faced a real risk of suffering significant harm in returning to, and residing in Kabul.
Submissions
Applicant’s submissions
With respect to ground one, counsel for the applicant was at pains to stress that Professor Maley was a highly qualified academic. Further, he submitted that in relying on the DFAT Thematic Report relating to Hazaras in Afghanistan, as well as a report from the UK Home Office, the IAA relied on information that was not as up to date as that contained in the reports of Professor Maley. Professor Maley’s reports specifically commented on the DFAT Thematic Report as follows:
“In February 2016, the Department of Foreign Affairs claimed in a Thematic Report specifically prepared for protection status determination purposes that ‘the threat of conflict related violence faced by Hazaras is similar to that faced by members of other ethnic groups’ and that ‘DFAT is not aware of any credible evidence that every day Hazaras are currently being systematically targeted on the basis of the Shia religion [sic]’ (DFAT Thematic Report: Hazaras in Afghanistan, 8 February 2016, paras 2.13, 3.7). In the light of the subsequent carnage in Kabul, and ISIS’s explicit claims of responsibility for it, such conclusions are now completely untenable.
…
Given the subsequent mass-casualty attacks of 11 October 2016 and 21 November 2016, it is equally untenable to depict the 23 July attack as an ‘isolated incident’”[2]
[2] CB, p 170 at para [9].
It would be unwise, it was submitted, for the IAA to give more weight to the generalised DFAT report than to the more specific report from a renowned expert such as Professor Maley. Further, there was no indication in the reasons of the IAA that it had actually considered Professor Maley’s reports. This is notwithstanding that the IAA found that there were exceptional circumstances to justify considering it. The failure of the IAA to discuss or even refer to the reports of Professor Maley in the body of its reasons could not be explained away by concluding that the IAA simply did not regard it as being material. A jurisdictional error is demonstrated on the basis that the IAA did not take into account relevant considerations, namely the information and opinion contained in the reports.[3]
[3] Sun v Minister for Immigration and Border Protection [2017] FCA 1270 at paras [43]-[46].
Counsel for the applicant submitted that the reports were contrary to the DFAT information and in fact objectively had more weight as they were compiled by a person who is an expert in the field, whilst the DFAT information was presumably compiled by a person who was simply employed by the Australian Embassy, or similar. In that regard, counsel emphasised the following observation made by Professor Maley who was commenting on examples provided in one of his reports:
“These cases speak much more powerfully to the real dangers in Afghanistan than can diplomatic reporting by officials pronouncing on the safety of roads which, for security reasons, they are not themselves allowed to use. ... it would be useful to know how much of the Australian Embassy reporting from Kabul is based on field research carried out by Embassy staff. As a regular visitor to the Embassy, my impression is that its impressively dedicated and hard-working staff are very severely limited in their movements by security concerns”[4]
First respondent’s submissions
[4] CB, p 169 at para [5].
Counsel for the first respondent submitted that the fact that the reasons referred to the report when the IAA dealt with the question of whether to consider it was itself evidence of the fact that the content of the reports had been considered. It could not in those circumstances be said that the IAA had ignored relevant material. It was open to the IAA to accord greater weight to the applicant’s own evidence with respect to his activity as well as the DFAT country information than to the submissions and other material including the reports of Professor Maley. Furthermore, Ms Stokes submitted that whilst it was obvious the IAA had referred and relied on the DFAT Thematic Report, it can be seen from the reasons themselves that the IAA did refer to an attack that had been dealt with by Professor Maley in his reports. That is apparent from the following paragraph:
“While there have been no recent reports of the Taliban carrying out mass casualty attacks against the Hazara and/or Shia population in Kabul, there have been attacks by other groups in recent years in that city. In December 2011, Pakistani militant group Lashkar-e-Jhangvi claimed responsibility for a targeted attack against Afghan Shias commemorating Ashura at Kabul’s Abu Fazl Mosque that killed more than 80 people. In February 2014, there was an attack on an Ismaili (Shia) cultural centre which killed one security guard. In October 2015, one person was killed in a bomb attack on a Shia prayer hall and the Islamic State in the Khorasan Province (ISKP) claimed responsibility. On 23 July 2016, explosions targeting a demonstration of Hazaras, killed up to 80 people. The Taliban denied involvement and condemned the attack. The ISKP claimed responsibility and indicated that it would continue to target Shia groups. On 11 October 2016 on the eve of Ashura, a gunman killed some 16 Shia Muslims at the Kabul’s Kart-e Sakhi Shia shrine. On 21 November 2016 a bomb attack on a Shia mosque killed around 30 worshippers. Islamic State claimed responsibility while the Taliban condemned the attack. Country information indicates that that attacks carried out by the Taliban in Kabul in recent years have been against government and security personnel, and the international community.”[5]
(footnotes omitted)
[5] CB pp 192 - 193 at para [34].
The above passage covers all of the attacks referred to by Professor Maley in his opinion piece. The fact that it did not footnote his reports, does not alter the fact that it clearly had regard to them. The first respondent pointed to the specific example above of the 23 July 2016 attack which had killed 80 people. That is consistent with the report of Professor Maley and clearly post-dated the February 2016 DFAT report. A similar observation could be made, it was submitted, with respect to the attacks of 11 October 2016 and 21 November 2016.
Consideration
I dismiss ground one. Firstly, it seems clear that whilst the IAA did not footnote Professor Maley’s reports, or refer to him by name after its finding that there were exceptional circumstances justifying consideration of his reports, it clearly had regard to the contents of them. A fair reading of its reasons supports that view. It is well established that the weight to be accorded to country information is a matter for the IAA.[6] Further, it is not an error of law or a jurisdictional error to rely on country information that is untrue. The accuracy of country information is a matter for the IAA and if a Court enters the arena in an attempt to assess the accuracy and therefore the respective weight to be given to competing sources of country information, it is sliding into an impermissible merits review.[7] It would not be correct to state that the assessment of weight to be accorded to country information could not in any circumstances amount to a jurisdictional error. It is established that failure to give adequate weight to a matter of great importance might justify the setting aside of an administrative decision on the grounds that it was manifestly unreasonable.[8] However, I am not satisfied that in this case, the exercise of the discretion by the IAA, in relying on the country information it chose to rely on, represents such a departure from the realm of decisional freedom vested in it that the decision was unlawful by virtue of being unreasonable. I am not satisfied that it could be said that the decision was such that no reasonable person could have made it.[9]
[6] NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at para [10].
[7] NAHI, ibid at para [11].
[8] Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at para [41].
[9] Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at paras [28] and [105].
Whilst the observation that I have made above in effect disposes of the third ground, I will proceed to summarise the submissions of the applicant on grounds two and three which can be conveniently considered together.
As to ground two, which alleges illogicality and/or irrationality, whilst expressed in those terms, the submissions of the applicant framed his argument to include a complaint that the IAA had misapplied the real chance test as enunciated in Chan Yee Kin v Minister for Immigration and Ethnic Affairs.[10]Counsel reminded the Court that a real chance was one which was not remote and that the question was not simply whether it was more or less than a 50% chance of significant harm on return to the country of origin. If there is a real chance, then the fear will be well-founded.
[10] (1989) 169 CLR 379.
I am not satisfied that the applicant has demonstrated either that the IAA misconstrued the test for a well-founded fear of persecution, or the real chance test as provided for in s.5J of the Act, or that the decision was irrational or illogical. The IAA clearly set out its reasoning process in paragraphs 34 and 35 of its reasons.[11] In doing so, it based its reasoning on a range of country information including that provided in the reports of Professor Maley. In so far as illogicality is concerned, it has been observed that assertions of illogicality and irrationality can “all too readily be used to conceal what is in truth simply an attack on the merits of the Tribunal’s finding and decision.”[12] In order to keep the proper focus of judicial review on whether jurisdictional error has been demonstrated, it is necessary for an applicant to demonstrate extreme illogicality. As the Court observed in CQG15 v Minister for Immigration and Border Protection:[13]
“For present purposes, there is a difficulty for the appellant in demonstrating ‘extreme’ illogicality. Even emphatic disagreement with the Tribunal’s reasoning would not be sufficient to make out illogicality …”
[11] CB pp 192 and 193.
[12] Minister for Immigration and Border Protection v SZUXN [2016] FCA 516 at para [56].
[13] (2016) 253 FCR 496 at para [61].
Those remarks are apposite to this case. I am satisfied that the finding of the IAA is within the scope of decisional freedom under the Act. I dismiss grounds two and three.
Accordingly, I make the orders to be found at the beginning of these reasons.
I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Judge Heffernan
Associate:
Date: 15 March 2019
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