EPT17 v Minister for Immigration

[2018] FCCA 240

FEDERAL CIRCUIT COURT OF AUSTRALIA

EPT17 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 240

Catchwords:
MIGRATION – Immigration Assessment Authority – whether it was legally unreasonable for the Authority to find that the applicant could relocate to Kabul – the submissions sent to the Authority made clear that relocation to Kabul was a live issue before the delegate – no jurisdictional error identified – amended application dismissed.

Legislation:

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

Cases cited:

Minister for Immigration and Border Protection v CRY16 [2017] FCAFC 210

Applicant: EPT17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 3202 of 2017

Judgment of: Judge Street

Hearing date: 2 February 2018

Date of Last Submission: 2 February 2018

Delivered at: Sydney

Delivered on: 2 February 2018

REPRESENTATION

Counsel for the Applicant: Mr L Karp

Solicitors for the Applicant: Kinslor Prince Lawyers

Counsel for the Respondents: Mr J Kay Hoyle

Solicitors for the Respondents: HWL Ebsworth Lawyers

ORDERS

1. Grant leave to the applicant to rely upon the amended application dated 16 January 2018 filed in Court and the Court dispenses with the need for the electronic filing of the same.

2. The amended application is dismissed.

3. The applicant pay the first respondent’s costs fixed in the amount of $7,328.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3202 of 2017

EPT17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act1958 (Cth) (“the Act”) in respect of a decision of the Immigration Assessment Authority (“the Authority”) under Part 7AA made on 11 September 2017 affirming a decision of the delegate not to grant the applicant a Safe Haven Enterprise visa.

2. The applicant was found to be a Hazari Shia from the Gizab District in the Uruzgan Province. The applicant arrived in Australia on 12 March 2013 as an unauthorised maritime arrival. The applicant applied for a Safe Haven Enterprise visa on 24 March 2017. 

3. The applicant claimed to fear harm as a result of his family having been involved in a longstanding dispute with the Pashtuns and Taliban who live in the Tamazon area. The applicant alleged that in 2012 the applicant’s father’s friend/maternal uncle approached the applicant and warned him that his father’s enemies, the Pashtuns were after him.  The applicant alleged that in fear of being kidnapped and killed by the Pashtuns and Taliban he left Afghanistan and travelled to Australia.  The applicant claimed that on return to Afghanistan he will be harmed by the Pashtuns and Taliban as they believe that the applicant wants to seek revenge for what has happened to his family in the past.

4. The applicant also feared that on return to Afghanistan he will be harmed as a young Hazari Shia returning from a western country and will be perceived to have money. The applicant contended he was unable to relocate to any part of Afghanistan to avoid harm.  The applicant claims to fear harm because Pashtuns and Taliban have an effective network throughout Afghanistan and the Taliban and other tourist groups are too powerful, and he does not have family or personal connections in Kabul or other cities that could offer him protection.

The delegate’s decision

1. On 24 July 2017, the delegate found the applicant failed to meet the criteria for the grant of the Safe Haven Enterprise visa. The delegate found that the real chance or real risk of persecution did not relate to all areas of Afghanistan and found that it was reasonable for the applicant to relocate to Mazar-e-Sharif. 

2. The applicant had provided to the delegate a statement of 14 March 2017 in which the applicant had expressly said he had no personal or family connections in Kabul, Kandahar or other cities that could offer protection or invite him into the community.  The applicant alleged that he would be an outsider in any community and feared the reasons why he fled Afghanistan would be discovered by informants and reported to the Pashtuns or the Taliban, and feared that because he would be a single person that it would not make it any safer or possible to move to a strange city.

The Authority’s decision

1. Following the decision of the delegate, the Authority wrote to the applicant on 27 July 2017, informing the applicant that the application for the visa had been referred to the Authority for review and that there were limited circumstances in which the Authority could consider new information. The Authority’s letter provided an attached fact sheet and practice direction giving the applicant an opportunity to put on submissions and new information. 

The Applicant’s submissions dated 7 September 2017

1. The applicant’s representative provided submissions dated 7 September 2017 to the Authority. Those submissions referred to the finding by the delegate that the applicant would face serious harm amounting to persecution if he wished to return to his home region of Gizab district, Uruzgan Province on the basis of his race and religion.

2. The submissions referred to the finding that the applicant would not face harm amounting to persecution on the basis of being a Shia Hazari in Mazar-e-Sharif in the reasonably foreseeable future. The submissions referred to the delegate finding that the applicant’s father is residing in Kabul, and that they are in contact and that his father would provide assistance to him should he return. The submissions then addressed an alleged breach of natural justice.

3. The submissions identified the issue of the applicant’s possible relocation within Afghanistan was discussed in the second half of the interview and focused exclusively on Kabul. It was submitted that at no point was relocation to Mazar-e-Sharif discussed with the applicant.

4. The submissions contended that despite that fact, the refusal decision was made on the basis of the applicant’s relocation to Mazar-e-Sharif and not Kabul. The submissions contended that the applicant was led to believe that the Department was only considering relocation to Kabul, and that he was not put on active notice that relocation to Mazar­-e-Sharif was a live issue in this case.

5. The submissions address the location of the applicant’s father and identify the applicant’s father’s residence in Kabul was of central importance to the reasonableness of his relocation to Kabul, which presumably was a mistake in the submissions and intended to refer to Mazar-e-Sharif, in consideration of both his refugee claims and his complementary protection claims.

6. The submissions also addressed funds initially being sent to Kabul and whether that provided a logical basis as to whether the recipient was physically present in Kabul, as the applicant provided photographs suggesting and suggested his father was in Iran.

The Authority’s reasons  

1. The Authority summarised the applicant’s claims and evidence and set out the relevant law. The Authority accepted that the applicant was a Hazari Shia born in Gezow Tamazon village, Gizab district, Urguzgan Province in Afghanistan.

2. The Authority in its reasons at 11 September 2017 identified the background to the visa applicant and Having regard to the information referred under s 473CB of the Act. The Authority identified the applicant’s submissions and deliberated upon whether that information was new information, and whether that new information met the requirements of s 473DD of the Act in respect of both limbs of that provision.

3. The Authority also referred to a request for an oral hearing to discuss the applicant’s claims with the Authority as to his capacity to relocate to Mazar-e-Sharif and the mechanics of funds transfer to places within Kabul under the Hawala system. The Authority gave reasons for finding that it was not satisfied that an interview was required or necessary. 

Assessment of Refugee Convention criteria

1. The Authority considered the explanations provided for the applicant’s use of his father’s and brother’s name when sending money to his family in Afghanistan to be unconvincing and implausible. The Authority was not satisfied that the transferred money has been collected by anyone other than those people listed in the transaction reported as beneficiaries. 

2. The Authority referred two post interview submissions which were received from the representative on 5 July 2017. The Authority considered the information contained in the post-interview submissions and was not satisfied that it evidences that the applicant’s father was not in Kabul during the period of June 2014 to September 2016 and that his brother was not in Kabul during the period of May 2014 to October 2016.

3. The Authority was not satisfied the applicant was being truthful about his evidence, his level of contact with his father, and the whereabouts of his father and brother S. The Authority was satisfied the applicant has regular contact with his father and brother S and that he has been sending money to his father and brother S, since his arrival in Australia. The Authority was satisfied the applicant had been sending this money through the money transfer system and that it has been collected by his father and brother S in Kabul, Afghanistan.

4. The Authority referred to the family dispute with the Pashtuns. The Authority accepted the applicant is from a mixed Hazara/Pashtun area in a disputed district, Gizab, which country information indicates in under the Authority of the Uruzgan Province but is still formally part of Daykundi Province. The Authority accepted the applicant was approximately six when his uncle was killed for reasons relating to a dispute between the applicant’s family and the Pashtun Taliban in his home area.

5. The Authority identified having serious concerns about the applicant’s claims that after the death of his uncle, his family’s dispute with the Pashtuns and Taliban continued. The Authority found for reasons expressed by the Authority that the applicant’s claims after the death of his uncle, his family’s dispute with the Pashtun and Taliban continue to be implausible.

6. The Authority found it not plausible that the applicant’s father continued to be an enemy of the Pashtun or Taliban as claimed  or that his father would return and stay in the family’s home area for a few months. 

7. The Authority found it implausible that the applicant could live unfettered for over a decade on the same land with his family if the Pashtun or the Taliban, or any other group or person in the home area, had a continuing enmity towards them. The Authority found it implausible that the Pashtun or Taliban would wait until the applicant had become an adult before approaching and threatening him in relation to a dispute which had occurred over 12 years ago.

8. The Authority did not accept the applicant had been a truthful witness in relation to these claims. The Authority did not accept that after the death of the applicant’s uncle, the family’s dispute with the Pashtun Taliban has continued. The Authority did not accept that after the applicant’s uncle’s death the Pashtun or Taliban had any continuing enmity towards the applicant or his family. The Authority did not accept the applicant was approached, sworn at, pushed or threatened by the Taliban when he was at the bazar in 2012. That Authority did not accept the applicant was approached and warned that his father’s enemies, the Pashtuns were after him at any time prior to the applicant’s departure to Afghanistan.

9. The Authority was not satisfied that there is a credible basis to suggest there is any risk that the applicant’s family dispute with the Pashtuns or Taliban would reanimate on the applicant’s return to Gizab district. 

10. The Authority was satisfied that the circumstances arising from the past dispute between the applicant’s family and the Pashtuns and Taliban did not give rise to a well-founded fear of harm. The Authority considered the Pashtun’s visit to the applicant’s school, in respect of which there appears to be a typographical error, and found on a fair reading of the decision, that it was not satisfied that the circumstances give rise to a subjective or well-founded fear of harm.

11. The Authority then turned to the applicant’s fear of harm in the Gizab district. The Authority was satisfied there is a real chance of the applicant being subjected to serious harm on return to his home area due to his ethnicity. It was in those circumstances that the Authority identified that in order to have a well-founded fear under s 5J of the Act, the real chance of persecution must relate to all areas of the receiving country. The Authority was not satisfied the applicant faced a real chance of harm in Kabul. 

12. The Authority was satisfied the applicant does not face a real chance of serious harm in Kabul from the Pashtuns or Taliban on account of the past dispute between applicant’s family and the Pashtuns or Taliban now or in the reasonably foreseeable future.

13. 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. 

14. Having discussed country information and made findings in that regard, the Authority was not satisfied the applicant faced a real chance of serious harm on the basis of forced recruitment by the anti-Government Elements or Taliban on his return to Kabul now or in the reasonably foreseeable future.

15. The Authority was not satisfied that the applicant faces a real chance of serious harm on the basis of becoming a Bacha Bazi or otherwise being sexually exploited on his return to Kabul now or in the reasonably future. 

16. The Authority was not satisfied that in Kabul, which is a major urban centre which has a diverse ethnic population and has seen growth from returnees and internally displaced persons over the years, that the applicant is a returnee who has spent a prolonged period in Australia or a western country would be identified as having a direct association with the Afghan government or international community and imputed pro-western political opinion. The Authority accepted that the applicant may exhibit some westernised behaviours on return, but was not satisfied the applicant’s return from Australia would lead to him being targeted on the basis of any western mannerisms or affiliated perception of wealth on his return to Kabul. 

17. The Authority was not satisfied the applicant faced a real chance of serious harm on the basis of being a returnee from a western country, any actual or imputed pro-western political opinion or a perception he is wealthy on his return to Kabul now or in the reasonably foreseeable future. 

18. The Authority identified having considered the applicant’s claims individually and cumulatively and was not satisfied the applicant has a well-founded fear of persecution in Kabul now or in the reasonably foreseeable future.

19. The Authority found the requirements of the definition of refugee were not met by the applicant under s 5H(1) of the Act. The applicant did not meet the criteria under s 36(2)(a) of the Act.

Assessment of complementary protection criterion

1. The Authority then turned to the issue of complementary protection and the Authority turned to the applicant’s particular circumstances in considering whether it was reasonable for the applicant to relocate to Kabul. 

2. Having identified the applicant’s personal circumstances, the Authority was satisfied that it was reasonable for the applicant to relocate to Kabul and such, that on the s 36(2B) of the Act there is taken not to be a real risk that the applicant would suffer significant harm in Afghanistan. 

3. Accordingly, the Authority found there are not 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 will suffer significant harm. The Authority found the applicant did not meet the criteria under s 36(2)(aa) of the Act and affirmed a decision under review. 

Before this Court

1. The ground of the amended application is as follows:

   1. The IAA acted in a manner that was legally unreasonable in not considering whether to disclose to the applicant that it may find that he could relocate to Kabul, and inviting submissions and new information on that issue in circumstances where the delegate found that the applicant could relocate to Mazar-e-Sharif and did not mention in his decision the possibility of relocation to Kabul.

The Court’s reasoning

1. Mr Karp of counsel on behalf of the applicant, argued that the Authority had acted in a manner that was legally unreasonable in holding that the applicant could relocate to Kabul without inviting the applicant to provide submissions and new information on that issue. 

2. Mr Karp submitted that it was legally unreasonable in circumstances where the delegate had found the applicant could relate to Mazar-e-Sharif and that the delegate’s decision did not identify that the applicant could relocate to Kabul. 

3. Mr Karp of counsel took the court carefully through the decision identified in Minister for Immigration and Border Protection v CRY16 [2017] FCAFC 210 (“CRY16”) in seeking to advance that this was a case in which in essence, the applicant was not reasonably on notice of the potential for the Authority to find that it was reasonable for the applicant to relocate to Kabul. 

4. Mr Karp of counsel submitted that the circumstances in terms of capacity to relocate to Kabul could be changing day by day from the delegate’s decision up until the time that Authority delivered its decision. Mr Karp referred to the practice direction and its indication to provide submissions on the findings made by the delegate. 

5. In the decision in CRY16, the circumstances of that case was one where the question of relocation had not been considered by the delegate.  That case is clearly distinguishable from the present case, as it is apparent that the issue of relocation was addressed in the applicant’s statement to the delegate and what is more, the submissions sent to the Authority on 7 September 2017, which post-dated the delegate’s decision, made clear that relocation to Kabul was a live issue before the delegate. In those circumstances, the decision in CRY16 is clearly distinguishable.

6. Mr Karp of counsel submitted that nonetheless the factual specific focus on the circumstances of the applicant in the present case were ones where, in light of the finding by the Authority as to relocation only in respect of Kabul, the Authority should have given the applicant an opportunity to address that issue, and that it was legally unreasonable for the Authority to fail to do so amounting to jurisdictional error. Mr Karp submitted that there is no evident or intelligible justification for the Authority’s failure to do so. 

7. As identified in the reasons of the Authority summarised above, it is apparent that the issue of relocation to Kabul was raised in the interview by the applicant prior to the delegate’s decision. It is the case that the alleged denial of procedural fairness advanced by the applicant’s representative on behalf of the applicant to the Authority, was the addressing of Mazar-e-Sharif rather than Kabul while the submissions acknowledged that had been raised at the interview.

8. This is not a case where it was legally unreasonable for the Authority to make a finding that it was reasonable for the applicant to relocate to Kabul. The Authority made an adverse credibility finding in relation to the sending of money by the applicant to his father and relocation to Kabul. That finding was open and cannot be said to be illogical or irrational.

1. In this case, relocation to Kabul was an issue that had been clearly raised before the delegate and any failure of the Authority to provide the applicant to attend to an interview or give new information in relation to Kabul did not give rise to any practical injustice or procedural unfairness. The decision of the Authority not to invite the applicant to attend an interview cannot be said to lack an evident and intelligible justification. No jurisdictional error as alleged in the amended application is made out. 

2. Accordingly, the amended application is dismissed. 

I certify that the preceding forty-nine (49) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  16 February 2018