EHV18 v Minister for Immigration

[2020] FCCA 2319

FEDERAL CIRCUIT COURT OF AUSTRALIA

EHV18 v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 2319

Catchwords:
MIGRATION – Immigration Assessment Authority – Safe Haven Enterprise (Subclass 790) visa – whether the Authority failed to assess the Applicant’s objections to relocation – whether the Authority failed to consider the Applicant’s objections based on a lack of clean water and sanitation – matters considered by the Authority at a higher level of generality – no jurisdictional error established – application dismissed with costs. 

Legislation:
Migration Act 1958, s.473CB

Cases cited:
Minister for Immigration and Citizenship v SZGUR [2011] HCA 1

First Applicant: EHV18

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File number: MLG 2512 of 2018

Judgment of: Judge Blake

Hearing date: 16 July 2020

Date of last submission: 16 July 2020

Delivered at: Melbourne

Delivered on: 21 August 2020

REPRESENTATION

Counsel for the applicant: Mr Aleksov

Solicitors for the applicant: Playfair Legal

Counsel for the respondents: Mr Goodwin

Solicitors for the respondents: Australian Government Solicitor

ORDERS

1. The Application filed on 22 August 2018 and amended on 13 February 2020 be dismissed.

2. The Applicant pay the First Respondent’s costs of the proceeding fixed in the sum of $7,467.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2512 of 2018

EHV18

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

And

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. This is an application for review of a decision made by the Immigration Assessment Authority (‘Authority’) on 13 August 2018. In that decision, the Authority affirmed a decision of a delegate of the Minister not to grant the Applicant a Safe Haven Enterprise (Subclass 790) visa (‘visa’).

2. For the reasons that follow, I have decided to dismiss the application for review.

Background

1. The Applicant is an Afghan national. He arrived in Australia on 3 May 2013 as an irregular maritime arrival. On 25 June 2013, the Applicant participated in an arrival and induction interview.

2. On 4 July 2016, the Applicant was invited to make an application for a Temporary Protection (subclass 785) visa for a Safe Haven Enterprise (subclass 790) visa. He applied for the visa the subject of these proceedings on 29 August 2016.

3. On 29 May 2017, the Applicant attended for an interview with a delegate of the Department of Immigration and Citizenship, as it then was (‘Department’).

4. On 16 February 2018, a delegate of the Minister (‘delegate’) refused to grant the Applicant the visa.

5. On 21 February 2018, the matter was referred to the Authority for review. On 13 August 2018, the Authority affirmed the decision of the delegate not to grant the Applicant the visa.

6. The Applicant filed the Application for review and an affidavit in support with this Court on 22 August 2018. The affidavit of the Applicant annexed the Authority’s decision. The Applicant was at the time unrepresented.

7. The Applicant filed an amended Application on 13 February 2020 (‘Application’).

8. On 22 June 2020, an affidavit of Walid Babakarkhil was filed in support of the Applicant’s case. The affidavit annexes a transcript of the interview held on 29 May 2017 between the Applicant and a delegate of the Department.

9. Both parties filed written submissions prior to the hearing before me.

The Grounds of Review

1. The Application sets out two grounds of review. At the hearing, the Applicant did not press ground 1 of the grounds of review. Accordingly, the single ground of review is ground 2. It is as follows:

   ‘The IAA failed to consider the applicant's objections to relocation to Kabul based on:

   a. The overcrowded nature of Kabul.

   b. The lack of clean water or sanitation in Kabul.’

2. The scope of the dispute between the Applicant and the Minister in this matter is a narrow one. The Applicant contends, inter alia, that in assessing the reasonableness of relocation, the Authority failed to consider the Applicant’s objections to relocation based on a lack of clean water and sanitation. The Minister accepts that these matters and the ‘overcrowded nature’ of Kabul are not dealt with expressly by the Authority in its written reasons.  The Minister, however, submits that the Court should infer they were taken into account and dealt with at a higher level of generality.

3. It is well accepted that if an administrative decision maker ignores relevant material in a manner that affects the exercise of its power, then it will have committed jurisdictional error. The absence of reference to particular material, however, does not necessarily mean that such material or evidence was not considered: Minister for Immigration and Citizenship v SZGUR [2011] HCA 1 at [31] (French CJ and Kiefel J).

4. There is not any dispute that the Applicant raised the overcrowded nature of Kabul, and lack of clean water and sanitation in Kabul, in resisting relocation.  In response to question 96 in the Applicant’s visa application form (Court Book 121) as to whether he could locate within Afghanistan, the Applicant stated as follows:

   ‘I will not be able to relocate to any part of Afghanistan as I am afraid that the Taliban will not spare me at any location. Further, due to my linguistic and cultural identity. I would be easily recognised in other areas in Afghanistan, resulting in being reported to the Taliban by their sympathisers who are hard to identify amongst common people. Additionally, according to a recent survey by a source of UNHCR, more than a million have been displaced and moved to Kabul, and who do not have access to clean water, sanitation, housing, and employment.

   Thus it would be very unreasonable for me to relocate within Afghanistan.’

5. Further, in a written submission to the Authority dated 14 March 2018, reproduced at Court Book 210, the Applicant stated as follows:

   ‘18. Further, Kabul city is overpopulated, with population estimated in 2015 as nearly 4.7 million people. With so much over-dense population there would not be sufficient access for everyone to basic life resources, including access to public services, as well as, no sufficient employment.

   19. It is true that [Z]’s mother lives with one of her son’s in Kabul. However, [Z] has been living separately from them in Khost and does not have much relations with them. In addition, [Z]’s immediate family members including his wife and children reside in Khost. It would be unreasonable and impracticable for [Z] and his family to move to Kabul, with very low employment prospects, and inadequate access to public services such as health and education, in addition to being in danger from the side of the AGEs.’

6. Different language was used by the Applicant in the visa application form when compared to the written submission above.  The Applicant in the visa application form makes an express reference to ‘clean water’ and ‘sanitation’.  The 14 March 2018 submission does not use those words, but instead says there would be insufficient ‘access… to basic life resources, including access to public services’.

7. The relevant paragraph from the decision of the Authority which deals with the issue of the reasonableness of relocation is paragraph [30]. It provides as follows:

   ‘I have considered whether the applicant could reasonably relocate to Kabul. Many returnees from western countries relocate to Kabul, where there are greater opportunities for employment. DFAT advises that traditional extended family and tribal community structures are the main source of protection or coping mechanism for successful relocation. The applicant’s mother and a brother are already settled in Kabul. The applicant submits he ‘does not have much relations with them’. However I note the applicant gave the name and telephone number of his brother in Kabul to the Department as his emergency contact, which indicates he did have contact and a relationship with this brother. I do not accept that he ‘does not have much relations with them’ but even he if he currently has little contact, I find as relatives he could reasonably seek assistance from them. The applicant has worked in different jobs in Australia and lived at a number of addresses. He has shown himself to be adaptable and resilient in travelling to and settling in a foreign country. He is a young man with no known health issues or vulnerabilities. I acknowledge the applicant has a wife and 6 children, and I have considered his submission that it is impractical for him to bring his family to Kabul. I note his wife and children currently live with her father. The applicant is currently living separately from his wife and children. I consider it reasonable for his family to continue to reside with his wife’s father until the applicant is sufficiently settled with employment and housing to bring his family to Kabul. I am satisfied it is reasonable for the applicant to relocate to Kabul where he does not face a real risk of significant harm.’ (error in original)

8. I have reviewed the decision of the Authority. The Authority in its reasons has expressly referenced the submissions made by the Applicant on 14 March 2018.  At paragraph [5] of its decision, the Authority states ‘The applicant’s representative provided a 5-page submission to the Authority on 14 March 2018.  I have considered those submissions’.  A further reference to the Applicant’s submissions of 14 March 2018 is contained at paragraph [12] of the decision of the Authority.

9. In addition to the above, the Authority directly quoted the submissions of 14 March 2018 in paragraph [30] of its reasons.  The two references in paragraph [30] of the Authority’s reasons that the Applicant ‘does not have much relations with them’ is a direct quote taken from the 14 March 2018 submissions.  I accept that the quote is directed to the subject of the Applicant’s relationship with members of his family. Nevertheless, it is apparent that the Authority had those submissions before it, and therefore had regard to matters relating to relocation, when it set out its reasons at paragraph [30] of the Decision.

10. While the Authority makes an express reference to the 14 March 2018 submissions, it does not make an express reference to the visa application form.  On one view, this could be seen as an indication that the Authority has simply failed to have regard to the visa application form and therefore the express reference to claims (or integers of claims) relating to ‘clean water’ and ‘sanitation’. However, one matter suggests this is not the case. At paragraph [4] of its decision, the Authority states ‘I have had regard to the material given by the Secretary under s.473CB of the Migration Act 1958.’ It can be taken that the material provided by the Secretary to the Authority included the relevant visa application form.

11. It is then necessary to consider carefully the language used both by the Applicant and by the Authority in its decision.  As I have mentioned previously, the Applicant referred to ‘clean water’ and ‘sanitation’ in his visa application form.  In his written submission, he did not use these terms. Rather, he referred to lack of ‘basic life resources’ or ‘public services’ because Kabul is overpopulated.  He therefore described in different ways, his particular objections to the reasonableness of relocation based on clean water and sanitation.

12. The Authority, in paragraph [30] of its reasons, deals expressly with a number of the Applicant’s objections to the reasonableness of relocation.  These include opportunities for employment, the state of his relationships with family members, housing, and the location of his wife and children. The Authority also refers to its consideration of a ‘submission that it is impractical for him to bring his family to Kabul’.  The Minister contended that this phrase is broad enough to cover consideration of claims relating to public services such as clean water and sanitation.  I understood the Applicant to resist that contention on the basis of what is set out at paragraphs [18] and [19] of the 14 March 2018 submissions.  The Applicant’s point was that the reference to the impracticality of him bringing his family to Kabul in the written submission referred to a separate aspect of his objections set out at paragraph [19] of the 14 March 2018 submissions: inter alia, that his wife and children were in Khost.

13. I am not persuaded by the Applicant’s contention above.  I accept that, within paragraph [19] of the 14 March 2018 submission, the consideration of the impracticality of the relocation of the Applicant’s family to Kabul begins with the phrase ‘in addition’ at the start of the second sentence of the paragraph, which the Applicant placed some emphasis on.  However, later in the paragraph, the Applicant himself has submitted that the impracticality of relocating his family arises because of, inter-alia, ‘inadequate access to public services such as health and education’.  ‘Public services’ is the same phrase used in paragraph [18] of the 14 March 2018 submissions, which the Applicant says encompasses clean water and sanitation.

14. There are two other relevant matters.  First, in paragraph [30] of its Decision, the Authority states that ‘I consider it reasonable for his family to continue to reside with his wife’s father until the applicant is sufficiently settled with employment and housing to bring his family to Kabul’.  The reference to being settled, particularly with respect to housing, is broad enough in my view to cover the Applicant and his family being sufficiently accommodated for, not only by reference to a house, but by reference to the necessary amenities one normally associates with housing, such as clean water and sanitation.

15. Second, it is apparent from the Authority’s reasons that it did consider a range of matters relevant to living in Kabul.  While there is no express reference to the word ‘overcrowding’, the Authority expressly referred to the number of returnees from Western countries who had relocated to Kabul, the greater employment opportunities associated with living in Kabul, the need for extended family and tribal community structures as a source of protection and as a coping mechanism and the personal characteristics of the Applicant. It seems to me implicit that in considering matters such as employment opportunities (and also housing), matters such as population (which significantly affect both employment opportunities and housing) will have been considered.

16. When all of the above matters are considered, I would draw the inference that matters relating to overpopulation, clean water and sanitation were considered by the Authority.  They were dealt with, as I have indicated, at higher level of generality.

17. For the above reasons, I dismiss the Application.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Judge Blake

Associate:

Date: 21 August 2020