ELX17 v Minister for Immigration

[2018] FCCA 775

FEDERAL CIRCUIT COURT OF AUSTRALIA

ELX17 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 775

Catchwords:
MIGRATION – Immigration Assessment Authority – application for a Safe Haven Enterprise visa – whether the Authority failed to consider an impediment to relocation raised by the applicant – whether the Authority failed to consider an integer of the applicant’s claim to fear harm – no jurisdictional error made out – amended application dismissed.

Legislation:

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

Applicant: ELX17

First Respondent: MINISTER FOR IMMIGRATION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 3074 of 2017

Judgment of: Judge Street

Hearing date: 28 March 2018

Date of Last Submission: 28 March 2018

Delivered at: Sydney

Delivered on: 28 March 2018

REPRESENTATION

Counsel for the Applicant: Mr D Hughes

Solicitors for the Applicant: D'Ambra Murphy Lawyers

Counsel for the Respondents: Mr H Bevan

Solicitors for the Respondents: DLA Piper

ORDERS

1. Grant leave to the applicant to file in Court the amended application dated 28 March 2018 initialled and dated by the Court and the Court dispenses with the need for the filing of an electronic copy of the same.

2. The amended application is dismissed.

3. The applicant pay the first respondent’s costs fixed in the amount of $4,800.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3074 of 2017

ELX17

Applicant

And

MINISTER FOR IMMIGRATION

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 6 September 2017 affirming a decision of the delegate not to grant the applicant a protection visa.

2. The applicant was found to be a citizen of Afghanistan and his claims were assessed against that country. The applicant arrived in Australia on 2 February 2013 as an unauthorised maritime arrival.

3. In the applicant’s statement provided with his application, he claimed to fear harm in Afghanistan on the basis of his Shia religion and his Hazara ethnicity. The applicant claimed while he lived in Afghanistan that he was twice abducted by the Taliban travelling on roads through Afghanistan. In that same statement the applicant maintained he could not relocate to anywhere else in Afghanistan, and referred to being Hazara, and that he was afraid if he resided in other parts of Afghanistan he would be identified as Hazara and Shia and would face persecution by Pashtuns or Taliban and that there is no place safe in Afghanistan for him to relocate himself.

4. On 25 January 2017, the delegate found the applicant failed to meet the criteria for the grant of a protection visa. In the course of the delegate’s reasons, the delegate summarised the migration agent’s post Safe Haven Enterprise visa interview oral submission. That referred to the proposition that many security incidents have occurred in Kabul and Mazar-e Sharif each week on a daily basis and most Hazara’s lives are in danger. Reference was made to the danger being from Taliban insurgents and other hostile groups.

5. The delegate referred to the applicant’s representative having submitted that if the applicant were to relocate to Kabul or Mazar-E Sharif it did not mean that he could have a safe life. The agent submitted that the applicant would not be able to work and earn good money to support other family members. It was submitted that the applicant would not be able to access government services. It was submitted that his wife and children are in danger of being harmed by the Taliban. It was submitted that the applicant could be similarly harmed if he returned to his home village. It was submitted that if the applicant were to return to Afghanistan and relocate to Kabul, then either he would have to travel to his home village to see his family or they would have to travel to see him. It was submitted that the journey is dangerous due to the roadblocks set up by insurgent groups.

The Authority’s Decision

1. On 31 January 2017, the Authority wrote to the applicant identifying that the applicant’s application for a protection visa had been referred to the Authority for review. The letter explained that there were 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.

2. Submissions were put on on behalf of the applicant by the applicant’s migration agent dated 21 February 2017 and they were expressly referred to in the Authority’s reasons.

3. Those submissions detailed the applicant’s claims if relocated to Kabul. In the course of those submissions, reference was made to the applicant having mentioned how unreasonable it is for him to bring his family to live in Kabul because they will be subject to security incidents as well. The submissions referred to the applicant having pointed at the unreasonableness of his relocation to Kabul because he will have to make travels to visit his immediate family members, therefore his life would be in danger travelling on road. It was submitted that the Department failed to consider the reasonableness of relocation based on the complementary protection criteria in assessing the applicant’s claim. Further submissions were put in relation to Kabul and employment.

4. The Authority identified the background to the visa application and had regard to the material it held under s 473CB of the Act and identified the material provided in the submission on 21 February 2017. To the extent that it identified arguments in relation to the finding of the delegate it had regard to the same. The Authority, upon taking into account both limbs of s 473DD of the Act, found that a particular part was one that the Authority was not satisfied there were exceptional circumstances to warrant its consideration and the Authority took into account more recent country information consistent with s 473DC(3)(a) of the Act. The Authority summarised the applicant’s claims and also referred to the applicant’s representatives post Safe Haven Enterprise visa interview submission dated 19 January 2017. That submission expressly referred to the issue of relocation and the submission that the applicant cannot avoid harm because he is originally from a particular place and all of his family members live in that region. It was submitted that by relocating to Kabul the applicant is unreasonably expected to avoid travelling to a particular location or any part of his village to see his immediate family members including his wife and children.

Assessment of refugee convention criteria

1. The Authority referred to the relevant law and was not satisfied the applicant faces a real chance of serious harm in his home region on account of his previous interactions with the Taliban, including his escape in the Qarabagh District in 2012. The Authority found given the lack of Taliban penetration in the applicant’s home region, the Authority was not satisfied there is a real chance the applicant would face harm from Taliban in that home region for reason of his ethnicity, religion or for any other reason.

2. The Authority was however satisfied that the applicant, as a Hazara, faces a small but real chance of serious harm if he travelled on the roads between his home region if he were to attempt to return there and was satisfied that his ethnicity would be an essential and significant reason for the harm.

3. The Authority made reference to the requirements of s 5J(1)(c) of the Act that the real chance of persecution must relate to all areas of the receiving country. Taking into account the applicant’s claims of harm based on ethnicity, religion, imputed political opinion or other profile elsewhere in Afghanistan, the Authority was not satisfied the applicant has a well‑founded fear of persecution in Kabul. The Authority made reference to the submission post the Safe Haven Enterprise visa interview that Hazaras can only live in a few areas in Kabul and raised concerns about inadequate protection mechanisms to prevent significant attacks in the city.

4. The Authority found Kabul provides relatively good economic opportunities and greater levels of security than other parts of the country, and there are relatively safe areas for Hazaras to reside. The Authority found the Afghan government retains effective control of Kabul. The Authority referred to the post Safe Haven Enterprise visa interview submission that Hazaras living in Kabul are at imminent risk of being attacked by the Taliban and Pashtuns. The Authority was not satisfied that the level of risk is such that it will mean that the applicant will face a real chance of harm within the foreseeable future for reason of his being a Shia Hazara. The Authority was not satisfied that there is a real chance 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.

5. The Authority was not satisfied on the evidence that returnees like the applicant, who had lived in a western country like Australia for a significant period, would be 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 a foreign government or organisation, due to a perceived infidel portfolio, due to time spent in Australia, or as a returnee asylum seeker.

6. The Authority was not satisfied that there are any significant vulnerabilities or barriers that would deny the applicant his capacity to earn a livelihood in Kabul, or that he will experience significant economic hardship, or that he would be denied access to basic services that threatens his capacity to subsist, now or in the foreseeable future.

7. The Authority found there was no real chance of the applicant being seriously harmed in Kabul on the basis of his religion, his ethnicity, his imputed political opinion, his past interactions with the Taliban, as a returnee asylum seeker, or for any other reason. The Authority was satisfied the applicant would be able to subsist if returned to Kabul. The Authority was satisfied the applicant has no association or proximity with other risk profile groups, nor is there any suggestion that he would have such an association or proximity when he returns to Afghanistan. The Authority found, having considered the applicant’s claims individually and cumulatively, that the applicant does not have a well-founded fear of persecution within the meaning of s 5J of the Act.

8. The Authority found the applicant did not meet the requirements of s 5H(1) of the Act and found the applicant did not meet the criteria of s 36(2)(a) of the Act.

Assessment of complementary protection criteria

1. The Authority then turned to the issue of complementary protection. The Authority set out the relevant law and expressly identified that s 36(2B) of the Act provides that there is taken not to be a real risk that a person will suffer significant harm in a country if it would be reasonable for the person to relocate to an area of the country where there would not be a real risk that the person will suffer significant harm.

2. The Authority referred to the applicant not being a person of interest to the Taliban, or any other group in Afghanistan, on account of his religion, his ethnicity, his imputed political opinion, his past interactions with the Taliban, and that he does not face a real chance of serious harm on this basis. The Authority concluded that the applicant does not face a real chance of harm for any other reason including him being a returning asylum seeker who has resided in a western country. The Authority found the applicant does not have a real risk of suffering significant harm for those reasons if he returns to, and resides in, Kabul.

3. The Authority then referred to the applicant’s evidence at the Safe Haven Enterprise visa interview that he had no family living in Kabul. The Authority referred to the applicant’s contention that it would be unreasonable to relocate to Kabul because it is a strange city with strange people. The Authority made reference to the applicant’s statement that there is no security in Kabul and that as a Hazara he would be subjected to discrimination.

4. The Authority referred to the applicant’s submission that the Hazara population in Kabul was living in poverty and that he would have to travel to find work and that this would not be safe. The Authority referred to the end of the Safe Haven Enterprise visa interview to the applicant’s representative’s submission that the applicant would not have access to employment or facilities such as health care in Kabul. Reference was also made by the Authority to the submission put on behalf of the applicant by the applicant’s representative that the applicant and his family could not travel to see each other as the roads are not safe. Reference was then made by the Authority to the post Safe Haven Enterprise visa interview submission that the Hazaras can only live in a few areas in Kabul and raised concerns about the protection mechanisms in place to prevent attacks in the city.

5. The Authority accepted that the government does not exercise uniformly effective control over all parts of the country, particularly in rural areas. The Authority referred to the applicant’s and the applicant’s representative’s concerns about the security situation in Kabul. The Authority found the evidence did not support that persons with the applicant’s profile are targeted in Kabul, including at the airport or in transit from the airport to the city. The Authority was not satisfied the applicant faces a real risk of being incidentally harmed. The Authority was not satisfied the applicant would be required to travel outside of Kabul for employment. The Authority referred to country information and found the applicant does not have any identifiable affiliations with international organisations or the Afghan government which would raise his profile to lead to him being specifically targeted by insurgents.

6. The Authority found on the country information and evidence that it did not support that Afghan government or security forces are losing control of Kabul. Taking into account these factors and the size and diversity of Kabul, the Authority found the risk that the applicant would be harmed as a bystander, inadvertently caught up in an attack, or otherwise harmed through generalised violence is remote. The Authority was not satisfied the applicant faces a real risk of suffering significant harm through generalised violence in Kabul.

7. The Authority was not satisfied the applicant would face discrimination or other mistreatment that would manifest in a way that would arbitrarily deprive the applicant of his life or have the death penalty carried out against him. The Authority found there was no evidence to indicate the applicant would suffer torture, cruel or inhumane treatment or punishment or degrading treatment or punishment intentionally inflicted. The Authority was not satisfied there was a real risk the applicant would face treatment for any reason in Kabul that would amount to significant harm. The Authority was not satisfied the applicant would face a real risk of significant harm in Kabul.

8. The Authority referred to the applicant’s immediate family members residing in a particular district. The Authority gave careful consideration to this in terms of the emotional and practical impact of the continued separation. The Authority accepted as the wife and children are the applicant’s dependents, the applicant would need to support them. The Authority found that the applicant had already spent years living apart from his family during two significant periods, first in Iran between 2005 to 2011, and secondly since leaving Afghanistan in 2012. It was in those circumstances that the Authority found there is no evidence to indicate that the applicant has been previously unable to support his family in the past and found the applicant could establish himself in Kabul.

9. The Authority referred to country information in relation to Kabul and found the applicant has demonstrated that he is resourceful and has successfully lived alone and apart from his family, and settled and worked in unfamiliar places. The Authority found that the applicant did not have any vulnerability that would act as a barrier to him obtaining employment enabling him to subsist in Kabul. The Authority found the applicant would be able to find employment and found the applicant would be able to find accommodation and that the applicant could access healthcare in Kabul.

10. The Authority referred to there being economic and other challenges in relocating to Kabul but found the applicant, consistent with the country information referred to, was able-bodied and of working age and does not present with any health problems or other specified vulnerabilities identified by the United Nations High Commissioner for Refugees (“UNHCR”) as requiring durable support.

11. In those circumstances, the Authority was satisfied that the applicant would have some relevant skills and attributes gained through his experience of being gainfully employed which would support his ability to find employment and earn a livelihood upon return. The Authority was satisfied the applicant would be able to access the necessary infrastructure and essential services to sustain himself and meet the basic necessities of life. The Authority was satisfied that over time the applicant will be able to integrate into the local community.

12. Considering the applicant’s personal circumstances and the country information relating to Kabul including the social, economic and security situation, the Authority was satisfied it is reasonable for the applicant to relocate to and remain in Kabul.

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

Before the Court

1. The grounds in the amended application are as follows:

   1. The respondent authority (IAA) misapplied s 36(2B) of the Migration Act 1958 (Cth) in that it failed to consider an impediment to relocation raised by the applicant, or alternatively failed to consider an integer of the applicant’s claim to fear harm.

   Particulars

   a. The IAA accepted that the applicant faced a real change of serious harm if he were to travel on the roads leading to a particular place where his family lives: DR [19];

   b. The IAA accepted that the applicant’s family, who were dependent on him, lived in a particular place: at [43];

   c. The IAA held that the applicant would not face a real chance of significant harm in Kabul: at [40];

   d. In considering whether it was reasonable for the applicant to relocate to Kabul, the IAA found that the applicant could establish himself in Kabul, separately from his family, and continue to support his family from Kabul and remain there: [43], [48];

   e. In so finding, the IAA failed to consider an impediment to relocation or an integer of his claim for protection which was raised by the applicant (or alternatively, which squarely arose from the materials) as follows:

   i. The applicant claimed that his family would attempt to travel from a particular place to Kabul to be with him: see delegate’s decision p 3.

   ii. The IAA needed to consider the risk that the applicant’s family would attempt the journey, and whether there was a change that the applicant might leave Kabul should they come to any harm.

   f. Further, the IAA failed to consider whether the potential of harm to the applicant’s family gave rise to a well-founded fear of persecution to the applicant, which was a claim for protection which was expressly claimed by the applicant or, alternatively, squarely arose on the materials.

1. Mr Hughes of counsel on behalf of the applicant, took the Court to the summary of the oral submissions on behalf of the applicant at the Safe Haven Enterprise visa interview and, in particular, drew attention to the proposition that either the applicant would have to travel to a particular place to see his family or they would have to travel to see him. Mr Hughes took the Court to paragraph 41 of the Authority’s reasons, where reference was made by the Authority that at the end of the Safe Haven Enterprise visa interview, it was submitted that the applicant and his family could not travel to see each other as the roads are not safe. Mr Hughes submitted that the applicant claimed his family or him would travel and that the Authority had failed to understand the applicant’s claim by reference to “could not travel” and had failed to address an integer of the applicant’s claim in relation to complementary protection.

2. Mr Hughes of counsel took the Court to the Authority’s finding in paragraph 43 and the reference to the continued separation and submitted that the Authority had failed to address the applicant’s claim that his family would travel to see him if he relocated to Kabul. Mr Hughes submitted that the Authority had failed to consider an impediment to relocation and an integer of the applicant’s claim and that if his family would attempt to travel the Authority would need to consider the chance the applicant might then have to leave Kabul because his family might be injured in that exercise.

3. Mr Hughes of counsel submitted that the potential harm to the applicant’s family gave rise to a well-founded fear of persecution to the applicant which was a claim for protection that was expressly claimed by the applicant or alternatively, squarely arose on the material. No such claim clearly arose on the material before the Authority. There was no jurisdictional error by the Authority in failing to consider a claim that was not advanced in relation to the Refugees Convention as identified in paragraph 1(f) of the amended application.

4. In relation to particular 1(e) no claim was advanced by the applicant that his family would be injured in an attempt to visit him. No such claim squarely rose on the material before the Authority. There was no failure by the Authority to consider an integer of the applicant’s claims in respect of the applicant’s family coming to harm on a journey to Kabul as no such claim was advanced and no such claim clearly arose on the material before the Authority.

5. In relation to Mr Hughes’ submission that the Authority misunderstood the applicant’s claims because of the reference to “could not travel” rather than what was said in the delegate’s decision that the applicant would have to travel to see his family or they would have to travel to see him, the Authority’s reasons are not to be read with a keen eye for error.

6. It is apparent from the submissions referred to above that the substance of the submission being advanced by the applicant in relation to Kabul and relocation was that he had family elsewhere and that the roads were dangerous, and the submission that was advanced on the applicant’s behalf to the Authority was that the applicant would have to make travels to visit his immediate family.

7. I find the reference to the applicant’s family could not travel to see each other if the roads are dangerous does not reflect any misunderstanding of the applicant’s claims or any misunderstanding of the applicant’s contention identified in the delegate’s reasons that either he would travel to a particular place to see his family or they would travel to see him.

8. Mr Hughes of counsel advanced that the family was at risk of harm if they travelled on the road to see him in Kabul and that was a risk that should have been addressed by the Authority in relation to complementary protection. That submission erroneously identifies the requirements. The Authority correctly identified the requirements it had to consider under s 36(2B) of the Act. The Authority did take into account the applicant’s claims in relation to his family being in another location and found that the applicant had already been separated from his family for two significant periods of approximately six years each. The Authority found by reference to the continued separation that the applicant and the family would not travel on the roads.

9. That was a finding implicit in paragraph 43 of the Authority’s reasons in the context of the applicant’s claims. There was no failure by the Authority to consider an impediment to relocation or a failure to consider an integer of the applicant’s claims to fear harm. No jurisdictional error as alleged in ground 1 is made out.

10. The amended application is dismissed.

I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate:  

Date:  4 May 2018