ERI17 v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 752
•24 August 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
ERI17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 752
File number: MLG 2251 of 2017 Judgment of: HER HONOUR JUDGE C.E. KIRTON KC Date of judgment: 24 August 2023 Catchwords: MIGRATION LAW – application for judicial review of Immigration Assessment Authority decision – Safe Haven Enterprise (subclass 790) visa – whether Applicant could reasonably relocate to another part of Afghanistan– whether IAA considered objections and claims of Applicant – whether IAA assessment was illogical – whether IAA considered less than real risks of harm – IAA sufficiently and adequately considered claims and evidence - application dismissed – costs ordered Legislation: Migration Act 1958 (Cth) ss 5J(1)(c), 36(2B)(a), 65, 476 and 477 Cases cited: AHK16 v Minister for Immigration and Border Protection [2018] FCAFC 106; 161 ALD 457
CGA15 v Minister for Home Affairs (2019) 268 FCR 362
EGZ17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 10
EHV18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 649
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v EGZ17 [2022] FCAFC 12
MZYQU v Minister for Immigration and Citizenship (2012) 206 FCR 191
Division: Division 2 General Federal Law Number of paragraphs: 44 Date of last submissions: 7 February 2022 Date of hearing: 7 February 2022 Place: Melbourne (by videoconference) Counsel for the Applicant: Mr Aleksov Solicitor for the Applicant: Clothier Anderson & Associates Counsel for the First Respondent: Mr Barrington Solicitor for the First Respondent: Sparke Helmore The Second Respondent: Submitted an appearance, save as to costs ORDERS
MLG 2251 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: ERI17
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
HER HONOUR JUDGE C.E. KIRTON KC
DATE OF ORDER:
24 AUGUST 2023
THE COURT ORDERS THAT:
1.The Application filed on 19 October 2017 and amended 10 January 2022 is dismissed.
2.The Applicant pay the First Respondent’s costs fixed in the sum of $7,853.
3.The name of the First Respondent be amended to “Minister for Immigration, Citizenship and Multicultural Affairs”.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
HER HONOUR JUDGE C.E. KIRTON KC:
INTRODUCTION
By an application filed in this Court on 19 October 2017 (Application) and amended 10 January 2022 (Amended Application), the Applicant seeks judicial review of the decision of the Immigration Assessment Authority (IAA), pursuant to s 476 of the Migration Act 1958 (Cth) (Migration Act).
On 14 September 2017 the IAA affirmed the decision of a delegate (Delegate) of the First Respondent (Minister) not to grant the Applicant a Safe Haven Enterprise (subclass 790) visa (Visa) under s 65 of the Migration Act (IAA Decision).
ISSUES IN DISPUTE
The issues in dispute are whether the IAA, in deciding that the Applicant, an Afghan national, could reasonably relocate to Afghanistan, properly considered the Applicant’s claims concerning:
(a)The Applicant’s ability to relocate and the weight given to his experiences in Pakistan and Australia;
(b)The possibility of harm as a bystander of generalised violence; and
(c)The impact of generalised violence on the reasonableness of relocation.
SYNPOSIS
I have determined that the IAA properly considered the Applicant’s claims in its consideration of the reasonableness of relocation. I find there is no jurisdictional error in the IAA Decision for the reasons set out below. It follows that the Amended Application must be dismissed.
BACKGROUND
The Court has before it a Court Book filed by the Minister numbering 193 paginated pages (Court Book). The Submissions filed by the Minister on 21 January 2022 (Minister’s Submissions) accurately summarise the background to this matter, at [2] to [4]. The Court adopts those submissions as its own with some amendments, as follows.
The Applicant is a citizen of Afghanistan.
On 6 July 2013 the Applicant arrived on Christmas Island as an unauthorised maritime arrival. An Irregular Maritime Arrival and Induction Interview was held on 6 August 2013.[1]
[1] Court Book (CB) 1-10.
On 28 July 2016 the Applicant was invited to apply for the Visa.[2] On 17 November 2016 the Applicant lodged a visa application (Visa Application)[3] with the assistance of a migration agent (Applicant’s Representative).[4] The Visa Application claimed that:[5]
(a)The Applicant is of Hazara ethnicity and a Shia Muslim from the Urzguan Province, Afghanistan;
(b)In 1994 the Applicant fled to Pakistan with his family due to the conflict in Afghanistan between the Hazaras and the Pashtuns;
(c)Due to constant fear, harassment and insecurity he faced in Quetta, Pakistan the Applicant then fled to: Phuket, Thailand; Kuala Lumpur, Malaysia; and Bogur, Indonesia; and
(d)If the Applicant returned to Afghanistan he feared he will be harmed on account of his ethnicity, religion, imputed support for the Afghan government and as a failed asylum seeker who resided in Australia.
[2] CB 20-21.
[3] CB 29-75.
[4] CB 29-75.
[5] CB 29-75.
On 6 January 2017 the Applicant was invited by the then Department of Immigration and Border Protection to attend an interview on 20 January 2017 in relation to the Visa Application.[6] Following the Applicant’s interview with the Delegate on 20 January 2017, on 27 January 2017 the Applicant’s Representative provided further written submissions in support of the Visa Application.[7]
[6] CB 85-86.
[7] CB 87-112.
On 6 February 2017 the Delegate refused to grant the Visa (Delegate’s Decision).[8] On 9 February 2017 the matter was referred to the IAA.[9]
[8] CB 113-134.
[9] CB 136-137.
On 1 March 2017 and 16 March 2017 the Applicant’s Representative submitted further written submissions and responded to the IAA’s requests for information.[10]
[10] CB 151-157 and 159-163.
On 14 September 2017 the IAA affirmed the Delegate’s Decision in the IAA Decision.[11]
[11] CB 166-185.
THE IAA DECISION
The IAA Decision is at pages 166 to 185 of the Court Book. The IAA firstly found that the Applicant would face a real chance of serious harm in the region of Uruzgan and if he travelled on the roads leading to Terin Kot, Urzugan.
The IAA then considered whether the real chance of harm extended to all areas of Afghanistan, with specific attention on Kabul, for the purposes of s 5J(1)(c) of the Migration Act. The IAA accepted that there had been attacks by militant groups in Kabul and that there was an Islamic State presence in Kabul capable of occasional further attacks. The IAA concluded that the risk of attacks was not sufficiently high or sufficiently focussed on the Applicant. Therefore, the IAA was not satisfied that the Applicant faced a real risk of harm in Kabul. Accordingly, the IAA was not satisfied that the well-founded fear related to all areas of Afghanistan.
The IAA assessed the complementary protection criteria. In relation to the complementary protection criterion, the IAA accepted that there was a real chance of significant harm but considered that the Applicant could reasonably relocate to Kabul.
The IAA considered the Applicant’s personal circumstances and country information and concluded that in Kabul the Applicant would be able to sustain himself, meet the basic necessities of life, and integrate into the local community.
PROCEEDINGS BEFORE THE COURT
The Application was filed in this Court on 19 October 2017, within 35 days of the date of the IAA’s Decision pursuant to s 477 of the Migration Act.
On 27 June 2018 Orders were made by consent for the Applicant to file an amended application, affidavit, supplementary court book and written submissions 28 days before the final hearing.[12] The Applicant filed the Amended Application and the Applicant’s Further Submissions on 10 January 2022 (Applicant’s Submissions).
[12] Orders made on 27 June 2018 and entered on 5 July 2018 by Registrar Luxton, Order 3.
This matter was heard on 7 February 2021 and proceeded by way of videoconference on Microsoft Teams (Hearing). Both the Applicant and the Minister were represented by Counsel. The Court is satisfied that the Hearing provided a meaningful opportunity for the Applicant to engage with the Court.
The Applicant relied upon the following documents:
(a)The Amended Application;
(b)The Applicant’s Affidavit, affirmed on 18 October 2017 and filed on 19 October 2017; and
(c)The Applicant’s Submissions.
The Minister relied upon:
(a)The Minister’s Response, filed 30 November 2017.
(b)The Minister’s Submissions; and
(c)The Minister’s List of Authorities, filed on 2 February 2022.
The Applicant relied on three (3) grounds of review (Grounds of Review):
1.The IAA failed to consider substantial aspects of the applicant’s relocation submissions, especially his opposition to his experience in Pakistan and Australia being probative of his ability to cope in Afghanistan. (Ground 1).
2.The IAA relied on illogical reasoning, in dealing with the prospect of the applicant being harmed as a bystander to generalised violence. (Ground 2).
3.The IAA failed to consider whether the accepted existence of generalised violence made relocation unreasonable. (Ground 3).
1. The Second Respondent denied the Applicant procedural fairness in its failure to alert the applicant to new issues arising before the Authority of which the applicant was not previously aware, and in the alternate Second Respondent denied procedural fairness because the Authority’s reasoning departed from the Department’s reasoning, resulting in a practical injustice to the Applicant.2. The Second Respondent constructively failed to review the decision of the delegate and failed to conduct a review as required under section 473CC(1) of the Act, by failing to inform the applicant of issues arising on review, and failing to consider its discretion under section 473DC to get new information from the applicant.(Words in italics added, otherwise without alteration)
CONSIDERATION
The finding that relocation by the Applicant within Afghanistan was reasonable
The main issue for determination is whether the IAA properly assessed whether it was reasonable for the Applicant to relocate within Afghanistan. The assessment of reasonableness of relocation is set out in s 36(2B)(a) of the Migration Act as follows:
36
[…]
(2B)However, there is taken not to be a real risk that a non-citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)It would be reasonable for the non-citizen to relocate to an area of the country where there would not be a real risk that the non-citizen will suffer significant harm; or
[…]
The Grounds of Review form part of the Applicant’s broader contention that the IAA committed jurisdictional error by failing to correctly determine the security and safety of the Applicant in Afghanistan and consequently erring in concluding that relocation to Kabul was reasonable. The Applicant contended that the question of relocation is a “substantial exercise” and that the IAA made a finding in the “most casual terms” without assessment of the Applicant’s claims.[13] To the extent that the Grounds of Review take issue with the weight to be given to the Applicant’s claims, this invites the Court to engage in impermissible merits review and does not disclose any jurisdictional error.
[13] Applicant’s Submissions, [7]-[8].
The Minister firstly outlined that the assessment of the reasonableness of relocation under s 36(2B)(a) of the Migration Act requires that the Court assess whether there is no appreciable risk of the feared persecution occurring in another part of the Applicant’s country of nationality and if there is no risk, whether relocation is reasonable.[14] The Minister submitted that the assessment of reasonableness will depend to some extent on the framework set by the claims of the Applicant but also required a detailed consideration of the circumstances.[15] Counsel for the Minister submitted that the IAA’s obligation is to consider reasonableness as against a general framework which is informed by the Applicant’s objections, but does not involve a reflexive duty to deal with each and every statement made by the Applicant.[16] The Minister cited AHK16 v Minister for Immigration and Border Protection [2018] FCAFC 106; 161 ALD 457 and EHV18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 649 as authorities for the principles regarding reasonableness. The Minister accurately summarised the relevant principles in relation to the determination of this matter.
[14] Minister’s Submissions, [8]-[9].
[15] Minister’s Submissions, [10]-[12].
[16] Transcript P9:L43-46.
The IAA’s enquiry is fact dependent, and the IAA should consider all of the relevant circumstances within the framework of the Applicant’s actual claims. The IAA is not required to make further enquiries, raise issues or otherwise investigate possibilities: MZYQU v Minister for Immigration and Citizenship (2012) 206 FCR 191 at [81]; and SZMCD v Minister for Immigration and Citizenship (2009) 174 FCR 415 at [124].
The Court notes that the Minister made submissions in regards to the application and effect of EGZ17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 10 (EGZ17).[17] Counsel for the Applicant did not press any case on the basis of EGZ17.[18] EGZ17 was successfully appealed in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v EGZ17 [2022] FCAFC 12. Therefore, questions of jurisdictional fact regarding the state of Afghanistan do not need to be addressed and do not impact the assessment of reasonableness in this case.
[17] Minister’s Submissions filed 21 January 2022 (Minister’s Submissions), [34]-[51].
[18] Transcript P3:L15-31.
Each Ground of Review will be considered in turn below.
Ground 1
Ground 1 claims that the IAA failed to take into account a substantial and specific argument put by the Applicant. Counsel for the Applicant submitted that the IAA did not assess his arguments that his ability to sustain himself in Pakistan and Australia was not probative of his ability to sustain himself in Afghanistan and that social disturbances in Kabul render relocation there unreasonable.[19] Counsel for the Applicant identified paragraphs [43] and [46] of the IAA Decision as critical and evident of the IAA’s failure.[20] Counsel for the Applicant submitted that if the IAA rejected the Delegate’s finding that the Applicant’s past experiences were probative of his ability to cope in Afghanistan then it should, especially where the submission is substantial, explain the reasons for rejecting the submission.[21]
[19] Applicant’s Submissions, filed 10 January 2022 (Applicant’s Submissions), [6]-[7].
[20] Transcript P6:L25-38.
[21] Transcript P17:L25-43.
The Minister contended that, contrary to the Applicant’s submissions, the IAA expressly noted and carefully considered the claims and objections raised by the Applicant. The Minister submitted that the IAA had regard to the Applicant’s past experiences in Pakistan and Australia but only noted it to a limited extent in regards to the Applicant’s construction work experience.[22] The Minister further submitted that the IAA expressly noted the Applicant’s concerns and assessed them in conjunction with a report by the United Nations High Commissioner for Refugees.[23] The Minister also submitted that the IAA considered the social problems in Kabul and how the Applicant would be affected, but the IAA ultimately concluded that based on various factors, the Applicant would be able to sustain himself.[24] Counsel for the Minister submitted that paragraph [46] of the IAA Decision showed the IAA considered the particular circumstances of the Applicant, not just the Applicant’s past experiences, and his claims that he could not sustain himself.[25]
[22] Minister’s Submissions, [15] and [16].
[23] Minister’s Submissions, [17].
[24] Minister’s Submissions, [18].
[25] Transcript P12:L25-38.
The Applicant made substantial submissions regarding why it would not be reasonable for him to relocate. The Applicant deposed to the reasons why he could not establish himself on an ongoing basis in Kabul.[26] The Applicant’s arguments against reasonableness, particularly in relation to his ability to subsist and social factors, were advanced and apparent to the IAA. As acknowledged by Counsel for the Applicant, the IAA refers to part of the Applicant’s submissions in paragraph [46] of the IAA Decision, however the Applicant argued that the IAA overlooked the weight and point of his submissions.[27]
[26] CB 154-155.
[27] Transcript P6:L27-29.
The Applicant’s contention cannot be maintained. I am satisfied that the IAA engaged with the Applicant’s claims and the critical factors before it. The Applicant’s objections and submissions formed part of the framework which the IAA considered. The IAA did not rely upon the Applicant’s experiences in Pakistan and Australia to determine reasonableness. In paragraph [43] of the IAA Decision the IAA considered the Applicant’s evidence that it would not be reasonable to relocate. Paragraph [46] of the IAA Decision concerns country information and how the Applicant’s ability to subsist would be impacted by various social factors.[28] Paragraphs [48] and [49] of the IAA Decision summarise the IAA reasons for being satisfied that the Applicant would be able to sustain himself.[29] The IAA recognised social and economic challenges in Kabul but in consideration of all the circumstances concluded that it was reasonable to relocate. The IAA discussed the Applicant’s previous experiences in relation to his work experience and work prospects. The IAA considered the Applicant’s family, tribal and social networks and relied upon an expert report about social connections. The IAA considered the reality of the Applicant and whether he would be able to find employment and housing.
[28] CB 179.
[29] CB 179-180.
Whilst the IAA did not expressly consider in detail the Applicant’s previous experiences, the IAA considered the past of the Applicant in combination with country information and the other personal circumstances of the Applicant. The IAA considered whether the Applicant could sustain himself without networks and whether he could obtain employment, and concluded that his particular circumstances in the context of the country information did not present a barrier to relocation. The IAA considered various factors, including the Applicant’s past, in order to come to a conclusion about his ability to live in Kabul. The IAA sufficiently and adequately dealt with the substance of the Applicant’s objections and claims in Ground 1. Ground 1 must be dismissed.
Ground 2
Ground 2 claims that the reasoning of the IAA was illogical as it determined that the Applicant was a bystander to the generalised violence and concluded that the risk of the Applicant being harmed was remote based on the size and diversity of Kabul. The Applicant submitted that the decision in CGA15 v Minister for Home Affairs (2019) 268 FCR 362 (CGA15) supports the contention that it is inadequate and unlawful to determine that because there are large numbers of people and the total number of attacks is small, the individual risk is small.[30] The Applicant further submitted that ‘targeted attacks’ is a misnomer and the risk of any one person in Kabul that is a bystander being harmed is a real risk.
[30] Applicant’s Submissions, [9]-[10].
The Minister accepted that the existence of generalised violence may be inadequate to meet the “real risk” test but may render relocation unreasonable. The Minister argued that CGA15 does not assist the Applicant. The Minister explained that CGA15 does not stand for the proposition that it is illogical for a decision-maker to reason that the risk of being harmed as a bystander is remote.[31] The Minister described that the principle from CGA15 is that it can be illogical for a decision-maker to employ a statistical analysis of risk in one city by analysing risk across the whole country.[32] The Minister contended that CGA15 does not apply in this matter and that it was logical in this context for the IAA to be satisfied that any risk was remote for the following reasons:[33]
(a)The IAA expressly found that the Applicant did not have any identifiable affiliations and the IAA did not consider that the Applicant would be part of a targeted group;
(b)The IAA did not employ a statistical approach but based its finding on country information concerning the control of Kabul by the Afghan government and security forces, with regard to the size and diversity of Kabul;
(c)The IAA did not assess the Applicant’s risk of harm by assessing the risk to population in Afghanistan generally. The IAA based its reasons on size and diversity which avoids the error in CGA15; and
(d)The IAA acknowledged that there is some risk of the Applicant being harmed as a bystander but was satisfied that the risk was remote. The IAA considered both the risks of attacks altogether and the contingent risk of the Applicant as a bystander.
[31] Minister’s Submissions, [22]-[23].
[32] Minister’s Submissions, [23].
[33] Applicant’s Submissions, [25]-[28].
The Applicant claimed that the IAA incorrectly adopted a statistical approach. The Applicant reconstructed the reasoning of the IAA and identified that paragraph [44] of the IAA Decision detailed the IAA’s findings about the Applicant’s claims regarding safety and relocation.[34] The main contention of the Applicant was that the method in which the IAA assessed the risk of harm due to the generalised violence resulted in the assessment of reasonableness being flawed.
[34] Transcript P6:L46-47 and P7-P8.
Unlike in CGA15, it cannot be said that the IAA adopted an illogical statistical approach. As is evident in paragraphs [44] and [45] of the IAA Decision, the IAA assessed the risk of harm in Kabul by considering the size and diversity of Kabul, along with the Applicant’s identity and personal circumstances. The IAA considered the security situation and the size of Kabul in its assessment of risk in Kabul and concluded that everyone who was not a primary target had a remote risk of being harmed inadvertently. The IAA weighed various factors affecting the Applicant’s risk of harm, including transiting from the airport, the primary targets of attacks, the control of security forces and the government, and the Applicant’s level of education, language skills, social networks and inability to find employment. The IAA considered all the evidence before it and I am satisfied that its reasoning was not illogical. Accordingly, Ground 2 is dismissed.
Ground 3
Ground 3 claims that the IAA failed to complete its task by failing to consider whether the existence of generalised violence rendered relocation unreasonable. The Applicant cited MZYQU v Minister for Immigration and Citizenship (2012) 206 FCR 191 as an authority for the principle that the existence of generalised violence might render relocation unreasonable, even if the risk of violence does not rise to the required level to meet primary complementary protection criterion.[35] Counsel for the Applicant contended that the IAA did not assess whether despite there not being a real chance of harm, it was nonetheless unreasonable for the Applicant to live in a society or city faced with sporadic attacks.[36]
[35] Applicant’s Submissions, [11]-[12].
[36] Transcript P9:L15-19.
The Minister accepted that case law supports the proposition that a decision-maker considering the reasonableness of relocation needs to consider all risks of relocation, including risks that are less than real risks.[37] The Minister contended that the IAA gave detailed consideration to the risks of harm to the Applicant in Kabul. The Minister submitted that the IAA considered country information regarding risks of harms and came to a conclusion by taking into account various identified risks (even after it found that the risk to the Applicant was not a real risk).[38]
[37] Minister’s Submissions, [30].
[38] Minister’s Submissions, [31]-[33].
In accordance with the first step of the reasonableness of relocation analysis, the IAA identified a place where the Applicant was not going to face a real risk of harm. The IAA made its own findings that there are sporadic attacks in Kabul in paragraph [44] of the IAA Decision. The IAA considered the impact of the attacks on the Applicant’s ability to live in Kabul as it considered various risks to the Applicant in [43] to [48] of the IAA Decision. In [43] to [48] of the IAA Decision the IAA expressly considered various risks that were less than a real risk by taking into consideration country information related to the security situation, as well as the objections raised by the Applicant. On the totality of the evidence before it, the IAA came to its conclusion as to the reasonable of relocation.
The Applicant cannot demonstrate that the IAA failed to consider a lesser risk of harm when considering the reasonableness of relocation. Ground 3 must be dismissed.
CONCLUSION
The Amended Application has not established that the IAA Decision was affected by any jurisdictional error. The IAA properly determined the reasonableness of relocation in consideration of the Applicant’s objections and submissions, the country information and relevant circumstances.
The Amended Application must be dismissed.
The Minister sought costs in the scale amount of $7,853. The amount is in accordance with Item 3, Division 1, in Schedule 2 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth). Accordingly, an Order will be made that the Applicant pay the Minister’s costs fixed in the sum of $7,853.
I certify that the preceding forty-four (44) numbered paragraphs are a true copy of the Reasons for Judgment of Her Honour Judge C.E. Kirton KC. Associate:
Dated: 24 August 2023
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