Eof17 v Minister for Immigration

[2018] FCCA 3534

FEDERAL CIRCUIT COURT OF AUSTRALIA

EOF17 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 3534

Catchwords:
MIGRATION – Protection visa application – review of decision of Immigration Assessment Authority – whether Authority erred in failing to consider a claim – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth)

Cases cited:

NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 144 FCR 1

Applicant: EOF17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 3156 of 2017

Judgment of: Judge Smith

Hearing date: 27 November 2018

Date of Last Submission: 27 November 2018

Delivered at: Sydney

Delivered on: 7 December 2018

REPRESENTATION

Counsel for the Applicant: Mr D A Hughes

Solicitors for the Applicant: D’Ambra Murphy Lawyers

Counsel for the First Respondent: Mr B Kaplan

Solicitors for the Respondents: Clayton Utz

ORDERS

1. The application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3156 of 2017

EOF17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for judicial review of a decision of the Immigration Assessment Authority dated 12 September 2017.  The Authority affirmed a decision of a delegate of the Minister for Immigration made on 23 January 2017 to refuse to grant the applicant a protection visa.

2. The relevant factual background is set out [3]-[9] of the applicant’s written submissions which I adopt for the purposes of this application.

   3.  The applicant is a citizen of Afghanistan. He arrived in Australia by boat on 28 March 2013. On 11 April 2016, he applied for a protection visa: Court Book (CB) 32. In support of his claims, the applicant provided a statutory declaration, which is reproduced at CB 70-71. The applicant claimed to fear persecution because he is a Hazara Shia, and because of a number of encounters with the Taliban while working as a driver for a logistics company. He also claimed, among other things that:

   Authorities in Afghanistan are very corrupt and can easily [be] bought or swayed. Further, discrimination against Hazara people in Afghanistan has become institutionalised and official authorities allow and often encourage this discrimination, violence and harm to occur.

   4.  On 23 January 2017, the delegate decided to refuse the application: CB 98 - 111. The delegate’s decision record identifies a claim made by the applicant at the interview with the delegate as follows:

   The applicant fears that his video-documented participation in a demonstration in Canberra, ACT in mid-2016 could be perceived as anti-government.

   5.  The delegate also refers to claims connected with the protest at CB 101 (the protesters opposed a proposal by the Afghan Government to build a power line) and at CB 104 – 105.

   6.  While the delegate’s reasoning is a little obscure, the decision appears to turn on a finding that the applicant could relocate to Kabul.

   7.  On 27 January 2017, applicant was referred to the IAA for a review: CB 117. A written submission at CB 120 – 124 confirmed that the applicant made the claims as summarised by the delegate (CB 120). There was no suggestion that a claim arising from a perception of being anti-government was no longer advanced. Understandably (given the strict page limits and the delegate’s reasoning), the submission focussed on relocation to Kabul.

   8.  On 27 February 2017, the IAA wrote to the applicant and asked for comment on country information: CB 128. The applicant responded on 21 March 2017: CB 137.

   9.  On 12 September 2017, the IAA decided to affirm the delegate’s decision: CB 165 - 176.

   (Without alteration)

3. The Minister accepted that, with the exception of [4], this was an accurate summary of the relevant factual background.  That paragraph forms the basis of the application to this Court and I will deal with it later in these reasons. 

4. The Authority accepted the applicant’s claims concerning his contact with the Taliban but was not satisfied that he was placed on a blacklist as a result of any of those incidents or due to his employment. It was not satisfied that after a period of approximately 5 years he would face a chance of harm as a result of his previous work as a driver for an NGO.

5. At [26] of the Authority’s reasons, the Authority considered the applicant’s claims concerning his participation in a Hazara protest in Canberra in mid-2016.  It stated:

   The applicant claims that in mid 2016 he participated in a Hazara protest in Canberra which was recorded and placed on social media and fears that if the Taliban became aware of his involvement this would place him at a higher risk of harm on return. I accept that the applicant may have participated in a demonstration in Australia. After consideration of his account at interview I am satisfied that this conduct was otherwise than for the purpose of strengthening his claim to be a refugee and that section 5J(6) of the Migration Act does not apply. However there is no credible evidence to indicate, apart from the applicant’s conjecture, that the Taliban would become aware of his involvement and be able to identify and target the applicant on return to Nawabad. The applicant would be returning to Nawabad where for reasons previously cited I have found there is not a real chance of harm arising from his previous employment and on the evidence returnees are not targeted by insurgents simply for being a returnee or failed asylum seeker with an imputed pro-western political opinion.

6. The applicant argues that the Authority failed to consider the applicant’s claim that he feared persecution in Afghanistan because, as noted, at page 3 of the delegate’s decision, “his video-documented participation in a demonstration in Canberra, ACT in mid-2016 could be perceived as anti-government”.  As I have observed, the Minister disputed that claim. At the hearing the Minister sought leave to rely on an affidavit that had been filed and served less than a week before the hearing in order to support his argument.  That leave was refused.

7. There was no dispute that, had the applicant made the claim as recorded in page 3 of the delegate’s reasons[1] then it would have fallen into jurisdictional error: NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 144 FCR 1. The issue then is whether such a claim was made.

   [1] Exhibit A, p.100.6.

8. In the applicant’s favour, there is the clear fact that the delegate, who interviewed the applicant for the purposes of his consideration of the protection visa application on 10 January 2017, recorded that the applicant feared that his participation in the demonstration in Canberra could be perceived as anti-government. That is evidence that such a claim was made. However, I accept, as submitted by the Minister, that the delegate’s reasons must be read as a whole.

9. The critical part of the balance of the delegate’s reasons is at page 7[2] where the delegate wrote:

   [2] Exhibit A, pp.104-105.

   Participation in a demonstration in Canberra, ACT

   The applicant indicated that his participation in a demonstration in Canberra, ACT in mid-2016 is one of the reasons he fears returning to Afghanistan, noting that it is “a very small or minor reason”.

   The applicant claimed that videos (which “have been distributed”) shows that he was present at the demonstration and that such videos “cannot be hidden from fanatical people”. He claims that such videos may be important to them and that they might have seen it. The applicant stated that if the Taliban wanted to follow someone, they would be able to follow them from the video. The applicant claims that a video of the demonstration in Canberra appeared on Facebook.

   The applicant described the event as “…a general demonstration organised for all Hazara people, all over the world. It was about justice for Hazaras.” The applicant stated that the demonstration protested against a proposal made by the Afghan government to change the planned route for a new electricity line.

   The applicant was asked to explain how his participation in the demonstration heightens his fear of returning to Afghanistan. He stated “This may be one of the smallest problems…It might be one of the reasons if they (the Taliban/Daesh) find me...Maybe it might be small evidence for them.”

   It was put to the applicant that it seemed highly speculative that he would be recognised by a member of the Taliban or Daesh as a participant in the demonstration and that this would be used against him. The applicant stated “Yes, I speculate. My problem is not mainly participation in Canberra’s demonstration…It’s not a big issue for me. It becomes more problematic if they see me there – if they identify me by watching that movie…”

   It was put to the applicant that in regards to the video, it seemed highly improbable that members of the Taliban or Daesh would watch the video, be able to identify him from the video or be looking for him in the video in the first place. The applicant indicated that it did not seem improbable from his perspective as he believes that his name is on a Taliban blacklist.

   Country information confirms that in May 2016, thousands of ethnic Hazaras attended demonstrations in various parts of the world to protest against a proposal to change the planned route for a new electricity transmission line in Afghanistan. Demonstrations opposing the government’s decision occurred in cities such as Kabul, Canberra, London, Washington D.C, Tokyo, Berlin, Qom/Qum (Iran) and Istanbul. For the purposes of this assessment, I accept that the applicant attended such a demonstration in Canberra.

   The applicant did not convey any satisfactory reasoning that would indicate that his participation in such an event would heighten his profile. The applicant failed to articulate how and why his participation in such an event would be construed as “problematic”. Given the circumstances by which the applicant’s claims on this matter were established, and with consideration to the applicant’s personal circumstances, I consider that it is implausible that the applicant’s fear of being identified and persecuted as a result of attending such a demonstration is credible.

   As such, this claim will not be addressed any further within this decision record.

   (Emphasis in original, footnote omitted)

10. This part of the delegate’s reasons is problematic.  First, if it is accepted that the delegate has accurately and completely recorded the applicant’s evidence in respect of his involvement in the demonstration in Canberra, it is difficult to understand how or why that evidence was recorded as a claim that the applicant could be perceived as “anti-government” as a result of that participation.  The only potential persecutors mentioned by the applicant in these passages are the Taliban and Daesh.  Those two organisations are themselves anti-government and it is hard to see how they might be interested in the applicant simply because of his own anti-government profile.

11. Secondly, it appears that the applicant made no claim greater than that he feared harm at the hands of the Taliban or Daesh on the hypothesis that they would watch the video and be able to identify him from the video.  There was no suggestion in that passage of the delegate’s reasons that there was any other reason for harm arising out of the applicant’s involvement in the demonstration.  I accept that it is possible that the applicant made a claim that he might be perceived as anti-government; however, the real question is whether the applicant has established that he did make such a claim.  I am not satisfied that he has established that.

12. Most importantly, the passage at page 7 of the delegate’s reasons includes a number of what appear to be direct quotes from the applicant.  None of these claims appear from any of the written documents given by the applicant or his advisers to the Department for the purposes of the protection visa application, and it must be inferred from that that these statements came from the applicant at the interview on 10 January 2017. 

13. There are two critical aspects of this passage that support the Minister’s submission: first, the fourth sub-paragraph in which the delegate records that the applicant was asked to explain how his participation in the demonstration heightened his fear of returning to Afghanistan.  The answer to that question was that the applicant feared the Taliban or Daesh might find him.  It did not include any reference to the Government or other authorities.  Secondly, in the penultimate paragraph in the passage set out above, the delegate explained that the applicant had not conveyed any satisfactory reasoning that would indicate that his participation in such an event would heighten his profile. 

14. The applicant submitted that that statement is to be understood as the delegate dealing with the claim at a higher level; that is, including the anti-government profile claim.  However, I am not convinced by that argument.  That is simply because it appears from two things that the delegate set out the important aspects of the evidence given by the applicant in respect of his claim: firstly, the use of quotation marks and secondly, the reference to the critical question in the fourth sub-paragraph of the passage.

Conclusion

1. For those reasons, I am not satisfied that the claim as articulated by the delegate at page 100 of Exhibit A was one in fact made by the applicant.  For that reason, the Authority was under no obligation to consider the claim and did not fall into jurisdictional error by failure to do so.

2. The only ground in the application must be rejected and the application dismissed.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Judge Smith

Date:         7 December 2018