Ejq17 v Minister for Immigration

[2019] FCCA 652

FEDERAL CIRCUIT COURT OF AUSTRALIA

EJQ17 v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 652

Catchwords:
MIGRATION – Visa – protection visa – whether Authority erred in law in determining applicant’s ‘home area’ – whether failure to properly consider relocation – whether denial of procedural fairness – whether refugee and complementary protection criteria were misapplied – whether Authority asked itself the wrong questions and took into account irrelevant considerations – whether decision unreasonable – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36(2)(a) & (aa), 36(2B), 473DB, 473FA(2) and 476

Cases cited:

SZQEN v Minister for Immigration and Citizenship (2012) 202 FCR 514

Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437
Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429

Applicant: EJQ17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: ADG 402 of 2017

Judgment of: Judge Heffernan

Hearing date: 4 February 2019

Date of Last Submission: 4 February 2019

Delivered at: Adelaide

Delivered on: 15 March 2019

REPRESENTATION

Counsel for the Applicant: Mr T Cadd

Solicitors for the Applicant: Beena Rezaee Legal & Migration

Counsel for the Respondents: Ms H Stanley

Solicitors for the Respondents: Australian Government Solicitors

ORDERS

1. The application is dismissed.

2. The applicant is to pay the costs of the first respondent.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADG 402 of 2017

EJQ17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

1. This is an application pursuant to s.476 of the Migration Act1958 (‘the Act’) for judicial review of a decision of the Immigration Assessment Authority (‘IAA’), dated 12 September 2017.  That decision affirmed an earlier decision of a delegate of the Minister not to grant the applicant a temporary protection visa.  The applicant was represented by counsel and on his application and I gave leave to amend the grounds of review.  The matter proceeded before me on the following grounds:

   “Ground 1

   The IAA erred in law by misconstruing the test to be applied in determining the place to which the Applicant would return if he was refouled to Afghanistan by:

   (a)failing to consider the Applicant’s place of origin, and to which he had the closest connection, being Qarabagh and instead applying the test to Kabul a place to which the Applicant had never been;

   (b)conflating the order of the legislative steps required in section 36(2B) of the Migration Act 1958 unreasonably to reach the presumptuous conclusion unfairly that the Applicant did not satisfy the criteria for a protection visa ; and

   (c)deciding that the Applicant did not satisfy the criteria for a protection visa contrary to the evidence before it.

   Ground 2

   The IAA erred in law by failing to give the Applicant an effective opportunity to address or provide evidence relating to a dispositive issue, that Kabul, not Qarabagh, was the place of origin or return.

   Ground 3

   The IAA erred in law by misapplication of the criteria in s 36(2)(a) and s 36(2)(aa) of the Migration Act 1958 in failing to consider whether a necessary and foreseeable consequence of the Applicant’s refoulment to his place of origin, Qarabagh, would result in a real risk of harm.

   Ground 4

   The IAA erred in law by ultra vires asking itself, and answering itself, questions that were irrelevant pursuant to sections 5H and 51, and section 36 of the Migration Act 1958 which consequently raised a real and substantial risk that irrelevant considerations were taken into account in determining the application of the Applicant’s place of origin, being the issues raised by the reviewer relating to the Applicant’s mother travel to Kabul to obtain a Taskera as a basis for choosing Kabul over Qarabagh.”

Background

1. The following summary is adapted from the outline of submissions filed by the first respondent.  The essential background matters were not in dispute in this matter.

2. The applicant comes from Afghanistan and is a Hazara and a Shia Muslim.  He was born in 1997 in Qarabagh located in Ghazni.  When he was approximately 2 years of age, he moved with his parents to Quetta, Pakistan.  His mother still lives there.  His father has subsequently passed away.  The applicant arrived in Australia on 11 November 2012, at which time he was invited to apply for a protection visa.

3. The applicant claims to require protection on the following basis:

   a)His ethnicity as a Hazara;

   b)His religion, being a Shia Muslim;

   c)His actual or imputed political opinion as an opponent of Sunni extremist groups, on the basis of his religion, ethnicity and being a returnee from a western country with westernised appearance; and

   d)Membership of the social group of failed asylum seekers from a western country, who is westernised by physical appearance, which in his case included having pierced ears.

4. In support of establishing his identity, the applicant provided to the delegate a Taskera, which he said was issued to his mother.  On his version of events, he claimed that his mother had obtained that document by travelling to Kabul, with the help of a people smuggler.  The delegate accepted that the applicant was an Afghan national.  The delegate proceeded to consider the applicant’s claims on the basis that if returned to Afghanistan, he would return to Kabul.  He did so because the applicant had claimed to have no family left in the Qarabagh vicinity, and because most returnees to Afghanistan are returned to Kabul.[1]  The delegate concluded that the applicant would not face serious harm upon return to Kabul for any of the reasons for which he claimed protection. 

   [1]     Court Book (‘CB’), p 127.

5. In conducting its review, the IAA declined to have regard to a further submission provided to it which contained country information that post-dated the delegate’s decision.  It concluded that there was not an exceptional circumstance requiring that to be considered.  The IAA did, however, consider submissions relating to matters previously before the delegate, but it did not receive any new information.

6. The IAA found the home area for the applicant was Kabul.  In doing so, it noted that the applicant expressed no intention to return to Qarabagh, and concluded that he would seek to establish himself in Kabul.[2]  The IAA found that there was no convincing evidence to establish that Shia Hazaras within Kabul would face serious harm or systematic discrimination on the basis of their religion or ethnicity, either at the hands of the Taliban, Islamic State, or any other insurgent group or person active in the area.

   [2]     CB p 147 at paras [22] to [26].

7. The IAA rejected the claim based on the applicant having lived most of his life in Pakistan, being a failed asylum seeker, and being a person who had been westernised by reason of his manner of dress and having earrings.  It concluded that such matters were both unremarkable and common in Kabul. 

8. The IAA concluded that there was only a remote risk of the applicant being seriously harmed by generalised violence in Kabul, that it was reasonable for him to remain in Kabul, and that reducing or limiting his movement in and out of Kabul would not amount to serious or significant harm.[3]  It concluded that the applicant did not meet the refugee criterion or the complementary protection criterion.

   [3]     CB pp 155 and 156.

Submissions

Ground one

1. The applicant submitted that the relevant test was misconstrued, because whilst the IAA acknowledged that Qarabagh was an “insecure area with a significant Taliban presence”,[4] it did not accept that Qarabagh was the place of closest connection or “home area” for him. As a result, it did not consider Kabul in the context of relocation, as was required by s.36(2B) of the Act. Mr Cadd submitted that the IAA impermissibly rolled the question of home area and relocation together, when it made the following observation and finding:

   “The applicant expressed no clear intention to return to Qarabagh, nor explained why he would be motivated to do so.  When asked why he could not live in another city such as Kabul or Kandahar, he explained that they were insecure, that he has no family or accommodation options, and it would be hard to live there.  I consider those reasons would apply equally to his claimed home area of Qarabagh.”[5]

   [4] CB p 148 at para [23].

   [5] CB p 148 at para [24].

2. That error occurred, in part, because the IAA made the finding, without evidence, that the applicant had “some level of family support or connections in Kabul”.[6]

   [6] CB p 148 at para [25].

3. To reach that conclusion, in the absence of evidence, rendered the finding as to Kabul being the applicant’s ‘home area’ to be manifestly unreasonable.  Further, the conclusion drawn by the IAA as to the applicant’s mother bypassing Qarabagh to travel to Kabul to obtain her Taskera supporting an inference that there must have been a level of family support there was illogical and internally inconsistent.  These errors caused the IAA to, in effect, sidestep what was required of it on an objective view of the facts, namely to assess the appropriateness of Kabul as a point of reference for potential relocation.

4. For the first respondent, Ms Stanley submitted that the finding as to ‘home area’ was made having regard to the applicant’s claims, in application of the principles set out in SZQEN v Minister for Immigration and Citizenship,[7] that it was open to the IAA, and could not be said to be illogical, irrational and unreasonable.

Consideration of ground one

[7] (2012) 202 FCR 514.

1. Underpinning the concept of relocation or internal flight is the principle that a person who has a well-founded fear of persecution in their home region does not obtain refugee status if they can “nevertheless avail themselves of the real protection of their country of nationality elsewhere within that country.”[8]

   [8]     Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 441.

2. With that in mind, the starting point, before considering relocation and the application of s.36(2B), must be a finding as to the relevant ‘home area’. Logically, unless the ‘home area’ (which for the purpose of s.36(2)(a) and (aa) will inevitably be the area or one of the areas in which persecution is feared) is ascertained, there can be no meaningful consideration of whether internal relocation is reasonable, in the sense of being practicable. If there is some dispute or uncertainty about that matter, a decision-maker is required to resolve that question. The finding of the delegate that Kabul was the relevant ‘home area’ had made the issue a dispositive and disputed issue.

3. In this matter, the IAA was faced with an unusual factual background because the applicant had not lived in Afghanistan since the age of 2.  It took into account that the applicant had left Afghanistan with his parents at that age; that he knew very little about the circumstances of his departure; had no recollection of living there; that he had not returned since leaving; and that he claimed to have no relatives in Afghanistan.  Further, it had regard to his evidence that his father did not own property in Qarabagh; that he had no family or accommodation options in Kabul; and that most persons who returned to Afghanistan lived in Kabul.  It also placed some weight on its finding that the applicant had “expressed no clear intention to return to Qarabagh, nor explained why he would be motivated to do so…”[9]  The IAA also had regard to the submission of the applicant that it was erroneous of the delegate to conclude that Qarabagh was not his home area simply on the basis that he had not lived there since the age of 2.  It considered his submission that, because he had never resided in Kabul, it should be regarded as a point of reference only for relocation.  The IAA drew an inference that the decision of the applicant’s mother to travel to Kabul rather than Qarabagh to obtain her Taskera:

   “… indicates to me that the applicant’s links to Qarabagh have been overstated or have ended and/or that the applicant has some level of family support or connections to Kabul.”[10]

   (emphasis added)

   [9] CB p 148 at para [24].

   [10] CB p 148 at para [25].

4. The inferential finding that Qarabagh could not be regarded as the relevant ‘home area’ was based on three possible matters of fact, not simply the question of family support or connections.  The IAA appears to have regarded each of those possibilities as equally plausible.  It was at least open to the IAA to find that the applicant’s ties to Qarabagh had ended.  This was so, simply on the fact that the applicant had left there at the age of 2; had never been back; had no recollection of the place; had no relatives there; no connection by way of property; and apparently no intention of ever going back there.

5. The IAA then considered whether Kabul could be regarded as the home area:

   “DFAT advice is that returnees from western countries are almost exclusively returned to Kabul.  I find that the applicant would be returned to Kabul, as have many tens of thousands of returnees from the west and Pakistan, and note that Kabul has close to two million Hazara Shias.  Weighing all the information before me I consider the applicant’s links to Qarabagh are limited, historic and no longer ongoing.  I consider that, as a question of fact, the applicant would return to, and seek to establish himself, in Kabul as his home area.  I have assessed his claims on that basis.”[11]

   [11] CB p 148 at para [26].

6. On the authority of SZQEN, it seems clear that the notion of ‘home area’ is not set in stone for all time by virtue of a particular place being the place of birth:

   “… I do not think that the reference in the cases to “home region” or “home area” (or similar expressions) is to be given a narrow or restrictive meaning to refer, for example, only to the place where the claimant happens to be living at the time of the feared persecution, or that a “home region” or “home area” is necessarily limited to one location if similar and substantial ties exist at another location that would also appropriately characterise that location as a “home region” or “home area” of the claimant.  Whether such ties exist and whether a particular location can be appropriately characterised as a “home region” or “home area” are matters of fact.[12]

   [12]    SZQEN, op cit, at para [38].

7. It was open to the IAA to find, as it appears to have done, that the applicant had similar and substantial ties to Kabul to those claimed with respect to Qarabagh by virtue of his being a Hazara Shia and the large population of Hazara Shias in Kabul.  In circumstances where the applicant had little knowledge or recollection of Afghanistan, it was not irrelevant or illogical for the IAA to give weight to the fact that most returnees from the west and Pakistan settle in Kabul.

8. On the applicant’s own case, Qarabagh would appear to have had no more significance to him than Kabul.  I am not satisfied that the IAA fell into error in proceeding on the basis that Kabul was the relevant ‘home area’.  The finding was open to it and it was not unreasonable, illogical or irrational.  The complaint is, in essence, an impermissible attempt at a merits review against a finding of fact as to the relevant ‘home area’.  I dismiss ground one.

Ground two

1. Whilst the wording of this ground is framed clearly in terms of procedural fairness, as argued it was expanded to include a claim for unreasonableness.  The applicant submits that the procedural unfairness complained of arose because the IAA did not put the applicant on notice that Kabul and not Qarabagh was the ‘home area’.  In doing so, the applicant contends that the IAA made assumptions on matters which should have been clarified with the applicant.

2. For example, that he had not expressed a clear intention to return to Qarabagh and would not return there if he was made to return to Afghanistan, and that there was no non-familial support for the applicant in Qarabagh, together with the finding that the applicant did not make any specific claim regarding a personal profile in Qarabagh for the same reason.[13]

   [13] Applicant’s outline of submissions at para [9].

3. A further example of this was said to be the assumption made by the reviewer of family support and connections in Kabul without evidence, and the lack of an opportunity to determine this same question for Qarabagh.

4. It was submitted that as a consequence, these intentions imputed to the applicant were not based on any evidence before the reviewer, and as a result, the decision was affected by manifest unreasonableness. 

5. Counsel for the first respondent submitted that the bounds of procedural fairness were, in effect, set by s.473DB of the Act and notes that the IAA did, in fact, receive and consider submissions relating to matters previously before the Delegate. The Minister submitted that all of the dispositive issues with respect of which a want of procedural fairness is complained were matters known to the applicant and on which he had ample opportunity to comment.

Consideration of ground two

1. The applicant was clearly on notice that Kabul and not Qarabagh being the relevant ‘home area’ was a dispositive issue.  That is because the Delegate had reached that conclusion:

   “Given the applicant left Qarabagh, Ghazni at the age of two, has claimed to not have any family left in the vicinity, and has lived in Quetta for over a decade up to his departure to Australia, I am satisfied the Qarabagh, Ghazni does not qualify as the applicant’s home area.  DFAT notes that returnees from western countries are almost exclusively returned to Kabul.  I will therefore assess the applicant’s fear of harm against Kabul.”[14]

   [14]    CB p 127.

2. The applicant understood that this was a dispositive issue, because his representatives specifically addressed it in submissions to the IAA.[15]

   [15] CB p 147 at para [21].

3. As far as the complaint that the IAA did not put to the applicant that he did not intend to return to Qarabagh and that it therefore made an assumption in that regard, those matters were addressed in the applicant’s own written submissions.  The applicant’s case was that he had no family in Qarabagh and that he had left there at such a young age that he had no recollection of it.  It was his case that he faced a risk of persecution in that Qarabagh.  It was open to the IAA to find that the applicant did not intend to return there.  It was for the applicant to advance his own claims, and if it had been his intention, if returned to Afghanistan, to travel to a place which he believed presented a risk of persecution, then it was for him to clearly articulate his claim in that way.  To the contrary, the applicant made a claim that he believed he could not travel to Qarabagh safely[16] and that he could not reasonably be expected to return to Ghazni.[17]

   [16]    CB pp 80 & 81.

   [17]    CB at p 90.

4. Further, the IAA did not, as asserted by the applicant, “assume” that the applicant had family support in Kabul.  It was one of three possible inferences the IAA found could be drawn on evidence the applicant himself had presented, namely, the account of his mother’s travels for the purpose of obtaining the Taskera.  The applicant’s version was that he had no ties to or family in Kabul.  He made that clear.  The IAA found that he did have sufficient connection to Kabul to justify treating it as his ‘home area’.  The applicant knew that was a dispositive issue.  The IAA was not required to make the applicant’s case for him, nor to give him a running commentary on its thought processes.

1. Further, there is no merit in the submission the applicant was prejudiced by a lack of opportunity to determine the question of family support or connections in Qarabagh.  His own claim was that he did not have such support or connection in Qarabagh.  What other conclusion could be reached from the following words in his statutory declaration:

   “I have no family or relatives in Afghanistan and do not know anything about it.”[18]

   [18] CB p 48 at para [28].

2. And then later:

   “I do not remember my village in Afghanistan.”[19]

   [19] CB p 48 at para [31].

3. I am not satisfied that it has been demonstrated that the applicant suffered a lack of procedural fairness as asserted or that the IAA’s finding was unreasonable.  I dismiss ground two.

Ground three

1. I have found that there was no error in concluding that Kabul was the applicant’s ‘home area’.  Having done so, it was not necessary for the IAA to consider how principles of relocation might apply.  Having said that, I accept the submission of the first respondent that, in effect, the IAA did consider a number of matters relevant to the question of the practicability of the applicant relocating to Kabul.[20]

   [20] CB p 154 at paras [56] & [57].

2. The applicant’s submissions on this ground proceeded on a misapprehension also apparent in ground two.  The IAA did not assume that there were no “non-familial” ties in Qarabagh.[21]

   [21] Applicant’s outline of submissions at para [13].

3. There was simply no evidence that there were “non-familial” ties to Qarabagh.  If the applicant asserted that there were, it was incumbent upon him to say so or to present evidence to that effect.  The IAA had no general duty to inquire as to the applicant’s connections to Qarabagh.  Its duty was to review the Delegate’s decision.[22]

   [22]    Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429 at para [25].

4. In the context of the claims made by the applicant it could not be said that the question of whether the applicant had non-familial ties to Qarabagh was “‘a critical fact’”, the existence of which (could be) easily ascertained”.[23]  I am not satisfied that there was a constructive failure to exercise jurisdiction by failing to conduct a review, which is in part what the applicant’s submission on this ground appeared to allege. 

   [23] Ibid.

5. The IAA reached conclusions on the basis of the materials before it. I have found with respect to ground two that the conclusion was open to it. Further, as counsel for the Minister submitted, the applicant did not make claims with respect to Kabul based on vulnerability, competitive environment, or his skills-set. It was not incumbent upon the IAA to determine the matter on the basis of claims not distinctly made. The applicant’s submission on those matters amounts to an invitation to undertake a merits review. I am not satisfied that a misapplication of the criteria in s.36(2)(a) and (aa) has been demonstrated. I dismiss this ground. The IAA did not “manufacture a factual basis on the assumption that the applicant’s ties to Kabul were similar to Qarabagh.”[24]

Ground four

[24] Applicant’s outline of submissions at para [13].

1. The applicant relied upon the submissions made with respect to ground two in support of this ground. In the applicant’s submission the reviewer asked questions that were not relevant to ss.5H, 5J and 36 of the Act. It fell into that error by questioning the applicant’s account of his mother’s journey after having accepted that the Taskera itself was genuine. It was submitted that the only person able to explain that journey was the applicant’s mother.

2. In the applicant’s submissions the reasons and manner of the journey were insufficiently explored by the reviewer.  To rely upon the applicant’s version, told to him by his mother, as truth of a Kabul connection would be to rely on hearsay.  Whilst the applicant accepted that the rules of evidence are not always strictly applied in administrative matters, such rules should be applied where failure to do so would be detrimental to the applicant.  To do so would be no more than to protect the validity of the administrative process.  Further, the applicant repeated his earlier submission that the mother’s journey did not support a finding by way of a connection with Kabul when determining a return location. 

3. The first respondent submitted with respect to ground four that the ground did not obviously raise any error which could be said to go to jurisdiction.  The Minister made the uncontroversial submission that the IAA is expressly not governed by the rules of evidence or bound by technicalities.[25]  It was, therefore, legally incorrect to say that the IAA could not rely on the applicant’s version of events as told to him by his mother. 

Consideration of ground four

[25]    Section 473FA(2).

1. It was the applicant who put to the IAA the version of events as to his mother’s obtaining the Taskera.  One reason he did so was presumably to establish that the Taskera had been obtained genuinely and was a genuine document.  He could only have known of those things by reference to the version of events told to him by his mother.  It is axiomatic that he was asking the IAA to accept that hearsay evidence. 

2. It would be most unusual if it was open to the IAA to accept that evidence for the purpose of establishing the validity of the Taskera but not for the purpose of potentially establishing the basis for an inference as to some form of connection to Kabul.  The applicant appears to be complaining that the IAA relied upon evidence that he himself had put to it.  It is not to the point that the IAA reached a conclusion that on the evidence put to it by the applicant that he does not like.

3. The IAA is not bound by technicalities or the rules of evidence and that version of events having been put to it by the applicant, the IAA was not bound to accept uncritically what it had been told by the applicant about his mother’s journey and was not foreclosed from drawing inferences that were reasonably open from that evidence.  I am not satisfied that jurisdictional error has been demonstrated in the manner alleged in ground four and I dismiss that ground.

4. Accordingly, I make the orders to be found at the beginning of these reasons. 

I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of Judge Heffernan

Date: 15 March 2019