EJO17 v Minister for Immigration

[2018] FCCA 3197

FEDERAL CIRCUIT COURT OF AUSTRALIA

EJO17 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 3197

Catchwords:
MIGRATION – Immigration Assessment Authority – application for a Temporary Protection visa – whether the Authority had a real and genuine engagement with the applicant’s submissions – whether the Authority’s reasoning was illogical – whether the Authority failed to assess the applicant’s personal circumstances – no jurisdictional error made out – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5H, 5J, 36, 473DC, 473DD, 476

Applicant: EJO17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: PEG 532 of 2017

Judgment of: Judge Street

Hearing date: 31 July 2018

Date of Last Submission: 31 July 2018

Delivered at: Perth

Delivered on: 31 July 2018

REPRESENTATION

Solicitors for the Applicant: Mr N Draper
Granich Partners

Solicitors for the Respondents: Ms E Tattersall
Sparke Helmore

ORDERS

1. The application is dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $4,500.00.

DATE OF ORDER: 31 July 2018

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

PEG 532 of 2017

EJO17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Immigration Assessment Authority (“the Authority”) under Part 7AA of the Act made on 30 August 2017 affirming a decision of the delegate not to grant the applicant a Temporary Protection visa.

2. The Authority expressed credibility concerns in respect of the applicant’s identity and background. The applicant was found to be a citizen of Afghanistan and his claims were assessed against that country. The applicant was found to be a Hazara Shia from a particular district in the Ghazni province. In summary, the applicant claimed to fear harm on account of his ethnicity and his religion.

3. The applicant arrived in Australia on 23 September 2012 as an unauthorised maritime arrival. On 15 November 2016, the delegate found that it was reasonable for the applicant to relocate to Kabul and found the applicant failed to meet the criteria for the grant of a Temporary Protection visa.

4. On 18 November 2016, the Authority wrote to the applicant informing the applicant that the application for the visa had been referred to the Authority for review. The letter explained that there are limited circumstances in which the Authority could consider new information and provided an attached fact sheet and practice direction giving the applicant an opportunity to put on new information and submissions.

5. The applicant did put on submissions dated 7 December 2016 that were expressly referred to in the Authority’s reasons and were considered by the Authority in relation to new information applying under the provisions of s 473DC and s 473DD of the Act.

6. The Authority also wrote to the applicant on 9 May 2017, inviting the applicant to comment on country information in relation to the reasonableness of the applicant to relocate. The applicant provided submissions in response to that invitation dated 20 May 2017, and the Authority was satisfied there were exceptional circumstances to justify consideration of the new information. The Authority’s reasons expressly refer to those submissions in the course of the Authority’s reasons.

7. The Authority identified the background to the application and summarised the applicant’s claims and evidence and the applicant’s fear of harm from the Kuchis, Taliban and the Islamic State because he is a Hazara Shia and an imputed political opinion arising from his ethnicity and religion. The Authority identified credibility concerns in relation to the applicant’s explanation in respect of his invalid protection visa application and the failure to disclose his brothers’ details. The Authority was not satisfied the applicant had been truthful in relation to his family composition, and his level of contact with them and where his family members are currently residing.

8. The Authority turned to the applicant’s fear of harm in his home region and was not satisfied the applicant faced a real chance of serious harm from Pashtuns, Kuchis and Taliban or because of his religion, ethnicity or because of an imputed political opinion or profile arising from his religion or ethnicity in his home region now or in the reasonably foreseeable future.

9. The Authority however, referred to travel on the roads in the applicant’s home region and due to his ethnicity found there was a real chance of the applicant being subjected to serious harm, and consistent with s 5J of the Act, referred to the real chance of having to relate to all areas of the receiving country. The Authority was not satisfied the applicant would face a real chance of serious harm in Kabul. The Authority found that the applicant does not face a real chance of serious harm in Kabul from Pashtuns, Kuchis or Taliban on account of his past interactions with Pashtuns, Kuchis or Taliban now or in the reasonably foreseeable future.

10. The Authority referred to the applicant’s concern in respect of difficulty in Kabul because of bomb blasts. The Authority referred to the security situation throughout Afghanistan being fluid and complex but found the government maintains effective, but not absolute control in major urban areas such as Kabul. The Authority referred to violent incidents involving insurgents still occurring and there remains concern over the capacity of the law enforcement and judicial systems and that it has been assessed that security in urban areas is typically better than in rural areas.

11. The Authority found in terms of the security situation in Kabul and the risk of harm to Hazara Shias such as the applicant, that although urban areas are reported to have large ethnic, linguistic and religious communities, reports of direct or deliberate targeting of ethnic or religious groups up until recently has been infrequent.

12. The Authority referred to the Kabul province having had a number of insurgent attacks targeting places of worship and referred to a 2015 attack and a July 2016 attack. The Authority referred to previous Department of Foreign Affairs and Trade (“DFAT”) advice that indicated that Islamic State has limited capacity and influence in Afghanistan, and that civilians now face a low risk of violence from organisations compared to the risk posed by other insurgent groups and the threats of violence generally in the country.

13. The Authority referred to a more recent Afghanistan Analysts Network (“AAN”) report which highlights that it is unlikely that Islamic State has capacity to drive the conflict in a sectarian direction on its own. The Authority referred to the position beyond serious but limited threats posed by Islamic State and found there are no other indications in the country information of targeting Shias or Hazaras in the urban areas of Kabul, whether by Islamic State or other active insurgent groups. The Authority referred to the groups at risk of insurgent attacks and referred to the Taliban and the assessment that the Taliban have remained focussed on high-profile targets and government institutions and other particular high-profile locations, and that there is no indication of any ethnic or sectarian component to their attacks in these urban areas.

14. The Authority referred to the invitation sent in May 2017 to the applicant and the applicant’s representative submitting that the mass casualty and suicide attacks targeting Hazara Shias in Kabul cannot be described as isolated given the growing accountability of Islamic State and the particular focus on Shia Muslims. The Authority referred to the fact that there is no threshold of regularity in the casualty or suicide attacks targeting Hazara Shias that must be met before there is a real risk of harm to the applicant. The Authority referred to the applicant’s representative’s submission saying country information in support of deterioration in security and the increasing strength and base of operations for sectarian groups pose a direct threat to the applicant on his return.

15. The Authority accepted that there had been attacks on the Shia population in Kabul in Afghanistan generally. The Authority found, however, contrary to the representative’s submissions, the Authority was satisfied that reports indicate that sectarianism is unlikely to take hold in Afghanistan. The Authority found that while future attacks on the Shia Hazara population in Kabul may occur, they are likely to remain infrequent and that Islamic State remains a limited threat in the country. The Authority referred to having regard to the security presence in Kabul, the capability of Islamic State and the focus of other insurgent groups, including the Taliban, and the applicant’s own profile, and was satisfied that there is not more than a remote chance of the applicant being harmed by insurgent groups on his return to Kabul.

16. The Authority referred to considering the risk of serious harm to the applicant from other groups. The Authority referred to DFAT country information in that regard. The Authority referred to the applicant facing some societal discrimination but was not satisfied that being subject to any nepotism or restriction in accessing government employment would threaten the applicant’s capacity to subsist or otherwise constitute serious harm. The Authority was not satisfied there was a real chance of the applicant being subject to serious harm in Kabul on the basis of his religion and/or ethnicity now or in the reasonably foreseeable future.

17. The Authority referred further to the submissions in reply to the invitation to comment sent in May 2017 to the effect that the applicant was a young, Westernised returnee. The Authority referred to the age of the applicant and did not accept the applicant would be considered a young, Westernised returnee on return. The Authority referred to country information and was not satisfied the applicant would face a real chance of serious harm on the basis of being a returnee from a western country on his return to Kabul now or in the reasonably foreseeable future.

18. The Authority was not satisfied the applicant has a well-founded fear of persecution in Kabul now or in the reasonably foreseeable future. The Authority found the applicant did not meet the requirements of the definition of “refugee” in s 5H(1) of the Act. The Authority found the applicant did not meet the criteria in s 36(2)(a) of the Act.

19. The Authority then turned to the issue of complementary protection. The Authority referred to the other findings made by the Authority in relation to the reasonableness of the applicant to relocate to Kabul. The Authority referred to taking into account the submission in response to the May 2017 invitation. There is a typographical error as to “March”.

20. The Authority referred to the UNHCR’s opinion in relation to relocation and the Authority expressly referred to having considered the particular circumstances of the applicant in that regard. The Authority referred to where the applicant’s wife and children reside, being Pakistan, and found the applicant had not been a truthful witness in relation to his family’s composition, his level of contact with them or where they are currently residing. It is in that context the Authority identified the applicant is a male of working age and has completed four years of basic literary education and has not completed any other education or training qualifications. The Authority referred to the applicant having previous employment in areas of construction, including tiling and stone work, and that the applicant described himself in his protection visa application as having the occupation of a labourer.

21. The Authority found the applicant is an able-bodied man of working age with no identified vulnerabilities and skills that would be transferable into the local labour market in Kabul. The Authority was satisfied the applicant would be able to earn a livelihood and that he would have access to the necessary infrastructure and essential services to sustain himself and meet the basic necessities of life. The Authority also took into account that the applicant will be returned to his home country, speaks the local language and is familiar with its culture.

22. The Authority referred to the fact that the applicant would be arriving in Kabul unaccompanied without dependents and will not be encumbered with the expense of having to pay in Kabul accommodation prices to house his family. The Authority was satisfied, given the applicant’s demonstrated skills and his experience in finding employment, that the applicant will be able to earn a livelihood sufficient to sustain himself and send some financial support to his family whilst establishing himself in Kabul.

23. The Authority referred to taking into account the applicant’s personal circumstances and country information, including the general conditions and security situation in Kabul, and was satisfied it is reasonable for the applicant to relocate to Kabul.

24. The Authority found there were not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being returned to Afghanistan from Australia, there is a real risk that the applicant will suffer significant harm. The Authority found the applicant did not meet the criteria in s 36(2)(aa) of the Act and affirmed the decision under review.

Before this Court

1. Ground 1 in the application is as follows:

   1. The Authority made a jurisdictional error in that it unreasonably concluded, and/or addressed the wrong question in concluding, that the Applicant does not have a well-founded fear of persecution.

   Particulars

   (a) The Authority misdirected itself in concluding that the Applicant, of Hazara ethnicity and a Shia Muslim from Afghanistan, does not face a real chance of persecution/harm if he is relocated to Afghanistan, in particular to Kabul, when the Authority found:

   (i) that the government does not have absolute control over the security

   situation in Kabul;

   (ii) that there have been attacks against Hazara Shias between October 2015 and November 2016 in Kabul;

   (iii) that Shias are likely to be subject to further attacks;

   (iv) that returning asylum seekers from western countries are at risk of discrimination in being perceived as having an association to the West;

   (v) that there is a likelihood of societal discrimination and ethnic and religious discrimination continues; and

   (vii) that it is reasonable and practicable for the applicant, an able bodied man of working age, married with children, to relocate to Kabul when, in Afghanistan, ethnic, tribal and familial connections do play an important role in daily life (specifically with regard to societal discrimination) when, in fact:

   (A) he has never lived in Kabul, nor does he have any family or close friends in Kabul;

   (B) he faces a greater risk of discrimination as a returnee from a western country;

   (C) he has limited work experience as a labourer;

   (D) he completed four years of basic literacy education and has no other education or training qualifications;

   (E) he is not a young man and was born during, or prior to, 1968, making him no less than approximately 50 years old;

   (F) that Kabul has a high rate of unemployment and underemployment.

2. Mr Draper on behalf of the applicant confirmed that ground 2 of the application is no longer pressed and was abandoned.

Ground 1

1. In relation to ground 1, Mr Draper submitted that the finding that the applicant did not have a well-founded fear of persecution because it was reasonable for him to relocate to Kabul was legally unreasonable. Mr Draper drew attention to the country information, the substance of which was identified in the applicant’s submission in response to the invitation to comment.

2. It is apparent from the Authority’s reasons that the Authority had a real and genuine engagement with the submissions advanced on behalf of the applicant in relation to the reasonableness of relocation. Mr Draper contended that it was illogical to find that the applicant did not have a well‑founded fear given the alleged deteriorating security situation. Mr Draper sought to characterise what the security situation was. It was for the Authority to make findings of fact in relation to the security situation in Kabul and it was for the Authority to take into account and assess the country information.

3. There is no illogicality identified in the Authority’s reasons in paragraph 55 or otherwise. The adverse finding in respect of the country information by the Authority was open for the reasons given by the Authority. Ground 1 is, in substance, an invitation to this Court to engage in an impermissible merits review. No jurisdictional error as alleged in ground 1 is made out.

4. The Court notes that the submissions of Mr Draper also sought to advance that there was legal unreasonableness in respect to the finding adverse to the applicant in respect to complementary protection. In that regard, Mr Draper contended that the Authority had not properly assessed the applicant’s personal circumstances in considering relocation and had considered what the applicant’s circumstances were not, rather than what they were. There is no substance in this proposition. The Authority expressly referred to the applicant’s personal circumstances and gave real and genuine consideration to the same in the adverse finding concerning complementary protection as summarised above. No jurisdictional error is made out in ground 1.

Conclusion

1. As the application fails to make out any jurisdictional error, the application is dismissed.

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 15 November 2018