EPI18 v Minister for Immigration

[2020] FCCA 724

FEDERAL CIRCUIT COURT OF AUSTRALIA

EPI18 & ORS v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 724

Catchwords:
MIGRATION – Protection Visa – Whether Immigration Assessment authority’s decision affected by jurisdictional error – where no error established in Immigration Assessment authority’s decision – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.473DD, Part.7AA

First Applicant: EPI18

Second Applicant: EPJ18

Third Applicant: EPK18

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

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: PEG 474 of 2018

Judgment of: Judge Vasta

Hearing date: 12 February 2020

Date of Last Submission: 12 February 2020

Delivered at: Perth

Delivered on: 12 February 2020

REPRESENTATION

First Applicant in person

Solicitors for the First Respondent: Australian Government Solicitor

ORDERS

1. That the name of the First Respondent be amended to read “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.

2. That the Application filed 5 September 2018 is dismissed.

3. That the Applicant pay the costs of the First Respondent fixed in the sum of $6,000.

IT IS NOTED

1. That the Court will not provide a written version of the reasons for judgment delivered today, unless an appeal has been lodged and the Court has received a request in writing from either party seeking that written reasons be produced.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 474 of 2018

EPI18

First Applicant

EPJ18

Second Applicant

EPK18

Third Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

(Ex Tempore)

Background

1. On 21 August 2018, the Immigration Assessment Authority (“the IAA”) affirmed a decision not to grant the Applicants, EPI18, EPJ18 and EPK18, Protection visas.  On 5 September 2018, the Applicants asked this Court to review that decision.

2. EPI18 is the husband of EPJ18.  Both of those Applicants are citizens of Afghanistan.  EPI18 and EPJ18 arrived in Australia on 13 July 2013 as unauthorised maritime arrivals.  EPK18 was born about a year later, on 11 July 2014.  Her parents are EPI18 and EPJ18.  The applications were made and all of their claims were considered at the same time.

Applicants’ Claims

1. EPI18’s claims are as follows: he is a Shia Hazara male from Yakawlang District, Bamyan Province, Afghanistan.  In 2009, he moved from Bamyan to Kabul, following a dispute over family land.  He claimed that prior to this, he received death threats from his father’s cousins who were also village elders in relation to that land.

2. The First Applicant said that he was afraid to go out in public in Kabul.  He said that he had heard that young men, normally Hazaras, were taken off the street and used as sex slaves and suicide bombers.  On one occasion, he was inappropriately touched by another person.  People in the street used bad language toward him.

3. Later in 2009, the First Applicant moved to Iran with the assistance of a smuggler.  He started searching for his parents because he believed they had moved there earlier.  After working for a period, he went to Turkey and then Syria.  The First Applicant lived in Syria from 2009 until May 2013.  The First Applicant met EPJ18, the Second Applicant, in 2012.  They got married in 2013.

4. If returned to Afghanistan, the First Applicant said that fears he will be harmed by the Taliban, by Islamic State or by Pashtuns due to his ethnicity and religion.  He also fears returning to his home village because he would be harmed by his father’s cousins.

5. He also fears that he will targeted by the government and the Sunni people because he came to Australia and he will be perceived as an infidel, and he will face harm because he does not speak with a Kabul accent.  He also fears harm due to bomb blasts where Hazaras reside and he fears that he will be kidnapped or targeted on return by a taxi driver at the airport who will identify him as foreign or as a Hazara.

6. The claims of EPJ18, the Second Applicant, can be summarised this way. She is a Shia Hazara female from the Uruzgan Province in Afghanistan. When she was about seven or eight, her parents were killed in a suicide bomb blast.

7. She fled Afghanistan in 2003 with her siblings after her father’s uncle tried to force her sister to marry an older person.  The Second Applicant’s father’s cousin threatened to kill her and her siblings if the marriage did not proceed.  She said that she, too, was threatened by her uncles and that her sister was beaten twice by an uncle.  She said that she lived in Syria from 2003 until May 2013.

8. She said that if returned to her home area, she fears harm from her father’s cousin and relatives because she married someone not of their choosing. She said that if she is returned to any part of Afghanistan, she will be harmed by the Taliban, by Islamic State or by Pashtuns due to her ethnicity.

9. The child, EPK18, the Third Applicant, has claimed protection as a member of the family unit. She also says that she faces harm on account of her Australian birth certificate because any future identity documentation she may be issued will link her to Australia, and therefore to the West and she could be harmed because of that.

IAA Decision

1. The IAA very thoroughly looked at the claims that the Applicants have made. The IAA then started looking at the claims that the First Applicant, EPI18 had made. The First Applicant, in talking about the land dispute, said in his SHEV statement that his father inherited farmland when his own father, that is the First Applicant’s grandfather, died. He said that when his grandfather passed away, there was a dispute as to who got the land.

2. The cousins of the First Applicant’s father had power within the village because they were part of the village elders.  The First Applicant said that his cousins first asked his father nicely to hand them the land, but when his father refused to hand over the land, the cousins started to pressure and then threaten his father.

3. The First Applicant said that his father was safe from his cousins while he was in his home because he lived with his mother, that is, the First Applicant’s grandmother.  The grandmother was ill, but the cousins respected her and would not do anything in her presence.  Notwithstanding that, the First Applicant said that his father was afraid that he would be harmed by his cousins when working on the land.  So in 2008, the father and the First Applicant’s mother moved to Kabul.  They took the First Applicant’s siblings with them.

4. The First Applicant stayed behind to care for his sick grandmother.  When his grandmother passed away, the First Applicant was approached by his father’s cousins and told to accept the money being offered for the land and to leave the village.  The First Applicant said he was threatened that if he did not accept the money and leave the village, he would be killed. So he took the small amount of money given by the father’s cousins and he went to look for his family in Kabul.

5. This statement differed from what the First Applicant said at the subsequent interview. At that interview, the First Applicant said that his father still owned land in the village and that it was being used by the father’s cousins. The First Applicant, in the interview, said that he did not know when his grandfather died and said that it was likely that it was before he was born; indicating that the land dispute had been going on for over 20 years.

6. The First Applicant claimed, in the interview, that in 2008 the cousins came to the house and threatened to kill him if he did not hand over the farmland. He initially claimed that the cousins did not offer to buy the land and wanted to take it by force, but he later stated he’s unsure whether his father was ever offered money for the land. The First Applicant further claimed that after his father and other family members moved to Kabul, he stayed in the village for another six or seven months farming the land.

7. In the interview, he said that he was able to remain in the village because his father believed that he, the First Applicant, would not be harmed by the cousins.  He said that neither he nor his father were ever physically harmed by the cousins.  He said he was given 30,000 Afghani currency for the land, which he eventually gave to a people smuggler to help him to go to Europe.  He initially said to the Delegate that he sold part of his land before leaving Kabul, but later in the interview he said he had no choice to take the money or he would be killed.

8. This contrasted with an earlier interview that the First Applicant gave when he first arrived.  In that interview, he was asked why he left Afghanistan and he said that his father was involved in a land dispute with his uncle and aunty, and that his family left the village because of the dispute.  He said he was left to care for his grandmother because she was too elderly to travel to Kabul.  He said that after his grandmother passed away in 2009, there was nothing else he could do, so he decided to leave for Kabul to look for his family.

9. The IAA noted that the First Applicant made no mention of him or his father receiving death threats from his father’s cousins.  Later in that entry interview, the First Applicant was asked if he could return to Afghanistan.  His response was that he could not, because it was not safe.  It was put to him that nothing had specifically happened to him in Afghanistan, and in response he said that Hazaras are at risk of harm in Afghanistan because of their ethnicity.

10. The First Applicant was asked at the end of the interview why he chose to come to Australia and in response, he said he could not return to Afghanistan because he is a Hazara and a minority. 

11. As one can see, there are significant differences in all three of those versions.

12. With regard to the Second Applicant, EPJ18, she spoke of a land dispute as well between her uncles and her siblings, and that her uncles threatened to take the land and because of this they were forced to leave.

13. The IAA concluded that the First Applicant, EPI18, had fabricated certain aspects of his claim, but was still willing to accept the broadly consistent evidence that his father was involved in a land dispute with family members in 2008.  The IAA noted that the indication in the interview that the dispute had been ongoing for over 20 years, and not since 2008, was a not insignificant matter.  The IAA was not satisfied that the First Applicant or his father was ever threatened by extended family members prior to them leaving the Yakawlang District.

14. The IAA accepted the First Applicant’s evidence that he spent several months in Kabul prior to leaving Afghanistan. The IAA accepted what the First Applicant said about what occurred in Kabul while he was there because his experience was corroborated by country information. Though, with regard to what would happen to young males, the information was that males aged between 10 and 18 years are the target groups; and that while some things happen in Kabul, that sort of activity is more prevalent in rural areas. 

15. The IAA noted that whilst they accepted that this may have happened, the First Applicant is now well over the upper age limit of boys that are targeted and would not, therefore, face a real chance of something similar happening again.

16. With regard to EPJ18, the IAA noted that her entry interview consisted of her saying that she was forced to flee Afghanistan due to a land dispute involving her uncles. But in her application, claimed that her father’s uncle tried to force her sister to marry an older person, the sister was beaten twice by an uncle, her father’s cousin threatened to kill her and her siblings if the marriage did not proceed, and that she, herself, was threatened by her uncle.  When asked why she did not mention those claims in her entry interview, and to giving those as reasons why she could not return to Afghanistan, she said that she could not remember.

17. The IAA concluded that the Second Applicant was not recalling a genuine personal experience in relation to events that she claims led to her departing Afghanistan.  The IAA was not satisfied that she was threatened by family members in 2003 as she claimed.  The IAA did, however, accept that her parents were killed in a bomb blast.

18. The IAA noted that the Second Applicant has had no contact with her family in Uruzgan since 2003. But, if she were returned, not to Uruzgan but to Yakawlang, the IAA was not satisfied that the Second Applicant faced a real chance of harm there from family members because she married someone not of her family’s choosing.

19. The IAA then looked at the country information about the Yakawlang District in the Bamyan Province. The country information was such that this province was largely secure. The country information does not support any suggestion that Shia Hazaras are currently being targeted and harmed in ethnic or religious attacks, nor for any other reasons, by the Taliban or other insurgent groups in that district or in the wider province.

20. Therefore, the IAA was not satisfied that there was a chance that the Applicants would face harm from any of these groups in Yakawlang for any reason of their ethnicity or their religion or as Shia Hazaras. The IAA was not satisfied that the Applicants would be imputed with an anti‑Taliban opinion or harmed by a bomb blast in Yakawlang.

21. The IAA noted that the First Applicant said that he believes he will be targeted by the government and Sunnis because he came to Australia and will be perceived as an infidel.  The IAA looked at this claim, and also whether the First Applicant or his wife, the Second Applicant, would be given an imputed political opinion that was pro‑Western.

22. Having, again, a look at quite a deal of country information, the IAA noted that in that information there was no indication of incidents of violence against returnees due to any apparent Westernised demeanour. However, there was some indication that returnees faced discrimination and stigma due to a perception of shame and failure for having sought and failed to gain asylum, and therefore failed to meet their family and community’s expectations of their migration. But such treatment would not amount to serious harm.

23. The Applicants had claimed that their knowledge of English would make them stand out, however, the IAA noted that, at the interviews, both Applicants had interpreters speaking in Dari. The IAA was satisfied that the Third Respondent daughter, EPK18, could converse in Dari and would continue to do so.

24. The IAA accepted that the Applicants may have developed some values or behaviours and related characteristics as a by‑product of being in Australia for so long.  However, even if they decided not to take steps to modify that behaviour, which the IAA found was not unreasonable and only a minor inconvenience, the IAA was not satisfied that they would face a real chance of harm on this basis.  Country information did not indicate that persons who demonstrated western mannerisms, traits or related behaviours were being targeted in Yakawlang.

25. The First Applicant indicated that his mind was now more open about religion. However, he did not indicate he was no longer a practising Shia Muslim, or that he had doubts about his faith.  The IAA accepted that on return to Afghanistan, the two of them would continue to practice their religion, including events significant to Shia Muslims.

26. The IAA looked at whether there would be harm faced on account of the Third Applicant, EPK18’s Australian birth certificate and the fact that future identity documentation would link her to that, as well as the fact that it notes that her parents are Applicants, EPI18 and EPJ18; which would show that there were in Australia, as that is where the child was born. Again, looking at country information, there was nothing to suggest that there would be such harm and the IAA was not satisfied that the Applicants faced harm because of that, and particularly that the Third Applicant faced harm.

27. Having looked at all of those matters, the IAA concluded that the Applicants did not meet the requirements of the definition of “refugee”.

28. The IAA then looked at the complementary protection assessment criteria.  The IAA looked at whether, if the Applicants were removed to Afghanistan, that they would go to Kabul airport and how it was that they would be able to reach their destination; knowing that some roads are dangerous for Shia Hazaras.

29. However, having a look at all of the country information, the IAA was satisfied that there were road routes that were sufficiently safe, so that any risk did not amount to a real risk.  The IAA also noted that there was an opportunity to use an aeroplane to fly to a neighbouring province and then travel on a safe road back to Yakawlang.

30. Having looked at those matters, the IAA found that there were not substantial grounds for believing that, as a necessary and foreseeable consequence of being returned from Australia to Afghanistan, that there was any real risk that the Applicants would suffer significant harm.

31. The IAA looked at EPK18 as a member of the same family unit as well and found, that because neither EPI18 nor EPJ18 met the definition of “refugee” or the complementary protection criteria, that EPK18 did not meet the family unit criteria either. Therefore the IAA affirmed the decision not to grant the Protection visas.

Grounds of Review

1. The originating application had three grounds.  They are these:

   1.I believe incorrect country information has been used in the determination of my case.

   2.I believe in the review of my case all relevant information was not considered.

   3.I believe there has been a judicial error in the review of my case.

2. There was no further particularisation of those grounds.

3. The First Applicant appeared unrepresented before me today.  He had nothing to add to those grounds.  When I asked him what else he wanted to say, he said that he has said it all before, that he has told the truth and that he could not understand why it was that he was not believed.

4. He said that he understood that this was a review, but that there was nothing more that he could say about the matter and was still confused as to why it was he was not believed.  I then went through in a general sense with him the fact that the IAA did not accept him because there were inconsistencies in his story and that the IAA had then looked at whether it was safe for him to return, and they concluded that it was.

5. The First Applicant said to me that with regard to the entry interview that he had only just arrived in this country, that he was stressed and that that may be a reason why he said things that he now no longer adheres to.  Of course, those were matters that were already considered by the IAA.

6. I asked him what else he wanted to tell me. He said to me that his fear was that the people that he was scared of in the village were still there in the village. He also said that everyone knows how volatile the whole country of Afghanistan is. He said that he is fearful about his two children going there. He said that he cannot put their lives in danger and that he does not have the courage or the stamina to even think about taking them there.

7. I note that I have spoken of the Third Applicant, EPK18, as having been born in July of 2014. The First Applicant had made submissions about two children.  When I queried this, he told me that there was another child born of him and EPJ18. That child was born on 31 December 2018 and would currently be 13 months old.  That is a matter for another day, I can only proceed upon what is before me.

8. When I asked the First Applicant if there was anything he wanted to say in reply after the Minister had made submissions, he told me that he felt like dying from this stress and that he feels helpless.

1. It would take a heart of stone not to be moved by the impassioned pleas that the First Applicant has made before me. But that is not my job, and it is not the task for which I took this oath of office.  I must apply the law without fear or favour.  I can only accede to the Applicants’ application if I find that there was a jurisdictional error.

2. I have tried to look at what the First Applicant has said to try and define some form of grounds so that an intelligible argument could be put and answered. I am extremely grateful to the Minister who, in their submissions, have attempted and, in many ways, succeeded to do this.

Ground 1

1. The first ground of “believing that incorrect country information had been used in the determination of the case”, I agree with the Minister that by this ground, the Applicants may be contending that the IAA used the incorrect country information because the country information that was provided to the IAA after the Delegate had made their decision may not have been used.

2. However, what is clear is that the IAA looked at the information that was provided and looked at whether it met the requirements in s.473DD of the Migration Act 1958 (Cth) (“the Act”). Those matters that post‑dated the decision, the IAA did take into consideration. The IAA also sourced material themselves. They noted that that material was actually more comprehensive than that which the Applicants had put before the IAA.

3. It seems to me that the decision not to consider country information that pre‑dated the Delegate’s decision was correct because it was not personal information, nor was there an explanation as to why it was not before the Delegate.  The IAA did consider extra country information, and as I have noted in my recitation of their reasons; such information was very thorough and very informative.

4. I cannot find that there has been any jurisdictional error in the manner in which the IAA approached the acquisition of the country information.  Therefore, it cannot be said that there is merit in ground 1.

Ground 2

1. By ground 2, I agree with the Minister that the Applicants are alleging that the IAA did not consider all relevant information.  However, all relevant information has not been specified by the Applicants; both in the application and here today.

2. I take the fact that the First Applicant has submitted to me that he should have been believed that the persons are still there waiting in his village and he is fearful of them; and that the security situation in Afghanistan is so volatile, that these are matters that are the ones that he believes were not taken into consideration.

3. However, it seems to me that all of those matters were taken into consideration.  It was simply that the IAA did not accept that the cousins, if they exist in that home village, do mean to do the First Applicant harm.  Unfortunately for the Applicant, I cannot see that the IAA has acted in any other manner than appropriately, when they came to the conclusion that they did not accept the First Applicant’s version.  That is a conclusion that was open to them.

4. The general state of the country was actually specifically looked at (in relation to the area in which the Applicant would be returning, and the associated areas) in a very thorough manner so as to decide whether there existed a real risk. It seems to me that all of that was taken into consideration properly and therefore there is no jurisdictional error.

Ground 3

1. By the third ground, I agree with the Minister that, by this ground, the Applicants are claiming that there was jurisdictional error in the manner in which the decision was arrived at.  However, that is, again, without any specificity, and with regard to the first two grounds, it is a ground that cannot be sustained.

2. The conclusions that were made by the IAA were conclusions that were open to it on the evidence. The IAA has complied with the codification of procedural fairness that is in Part 7AA. I cannot see that there is any room to say that there has been any jurisdictional error. Therefore, ground 3 also fails.

Conclusion

1. Because there has not been established, to my satisfaction, any jurisdictional error, I must dismiss this application.

2. Because the Applicants have failed, I do not believe I have really any discretion other than to order costs in the amount of $6,000.

3. I will also change the name of the Minister.

I certify that the preceding sixty-five (65) paragraphs are a true copy of the reasons for judgment of Judge Vasta

Date:  1 April 2020