Etc17 v Minister for Immigration

[2018] FCCA 2654

FEDERAL CIRCUIT COURT OF AUSTRALIA

ETC17 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 2654

Catchwords:
MIGRATION – Immigration Assessment Authority – application for a Safe Haven Enterprise visa – whether the Authority misapplied s 36(2B)(a) of the Act – no jurisdictional error made out – whether the Authority failed to expressly consider the applicant’s claims – no jurisdictional error made out – application dismissed.  

Legislation:

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

Cases cited:

MZYQU v Minister for Immigration and Citizenship [2012] FCA 1032

Applicant: ETC17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 3287 of 2017

Judgment of: Judge Street

Hearing date: 18 September 2018

Date of Last Submission: 18 September 2018

Delivered at: Sydney

Delivered on: 18 September 2018

REPRESENTATION

Counsel for the Applicant: Mr T Liu

Solicitors for the Applicant: D'Ambra Murphy Lawyers

Counsel for the Respondents: Mr H Bevan

Solicitors for the Respondents: HWL Ebsworth

ORDERS

1. The application is dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $7,467.00.

DATE OF ORDER: 18 September 2018

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3287 of 2017

ETC17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

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 25 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 citizen of Afghanistan and his claims were assessed against that country. The applicant arrived in Australia as an unauthorised maritime arrival on 28 March 2013. The applicant claimed to fear harm from the Taliban and Daesh due to his Hazara ethnicity and his Shia religion, his employment with a non-government organisation and his western links arising from his travel to Australia.

3. On 2 March 2017, the delegate found the applicant failed to meet the criteria for the grant of a Safe Haven Enterprise visa because the applicant could relocate to Kabul or Mazar-e-Sharif where he would not face a real chance of persecution or a real risk of significant harm.

4. On 7 March 2017, the Authority wrote to the applicant explaining that the application for the visa had been referred to the Authority for review. The letter provided and attached fact sheet and Practice Direction giving the applicant an opportunity to put on submissions and new information. No submissions were provided to the Authority.

5. The Authority in its reasons identified the background of the visa application having regard to the material given by the Secretary under s 473CB of the Act and identified taking into account country information consistent with s 473DE(3)(a) of the Act. The Authority summarised the applicant’s claims and set out the relevant law.

6. The Authority was satisfied that the applicant could relocate to Kabul. The Authority was satisfied that there is a small but real chance that the applicant would suffer serious harm on the roads as a Shia Hazara, but the Authority was satisfied that the applicant could avoid harm by relocating to Kabul. The Authority referred to s 5J(1)(c) of the Act. The Authority accepted that the applicant may resume driving in Kabul for financial reasons. The Authority did not accept that the applicant would be unable to find driving work and other forms of work within Kabul, which is one of the biggest commercial and financial centres in Afghanistan, where there are greater opportunities for employment despite economic slowdown, and where there is access to services not available in his home area.

7. The Authority was not satisfied that as a driver within Kabul that the applicant would face real chance of serious harm. The Authority found the applicant could avoid a real chance of persecution by not travelling through contested areas outside Kabul and that this behaviour modification is not prohibited under s 5J(3) of the Act. The Authority was satisfied that limiting the applicant’s work as a driver to government-controlled areas of Kabul would not conflict with a characteristic which is fundamental to the applicant’s identity of conscience. The Authority found that requiring the applicant to modify his behaviour by not travelling through contested areas outside Kabul is not one which would conceal an innate or immutable characteristic of the applicant or is not otherwise prescribed by s 5J(3)(c) of the Act.

8. The Authority found that the applicant would not be required to travel in contested areas and that it could reasonably be expected that the applicant remain in Kabul where he would be able to safely access employment relevant to his skills. The Authority, taking into account s 5J(3) of the Act, was satisfied the applicant does not have a well-founded fear of persecution as a driver in Kabul.

9. The Authority was not satisfied that attacks on Shias in Kabul indicate an ongoing wider sectarian campaign in Kabul in the reasonably foreseeable future. The Authority was not satisfied that attacks on Shias in Kabul indicate any support for an ongoing wider sectarian campaign in Kabul in the reasonably foreseeable future, such that the applicant will face a real chance of serious harm from insurgent groups in Kabul.

10. The Authority was not satisfied that the applicant faces a real chance of persecution as a Shia Hazara upon return to Kabul in the reasonably foreseeable future. The Authority was not satisfied there is a real chance that, although the applicant has spent time in Australia, the applicant would be readily identified as a returnee and targeted for this reason or that he would be subject to the issues of reintegration experienced by some young returnees who had spent their formative years outside of Afghanistan.

11. The Authority was not satisfied on the evidence that returnees like the applicant who have lived in western countries are targeted in Kabul by insurgents or that the applicant would be targeted on return as a Shia Hazara returnee with an imputed political pro-western political opinion. The Authority was satisfied the applicant does not have a profile within Kabul. The Authority was not satisfied the applicant faces a real chance of harm in the foreseeable future from Taliban, Daesh, Islamic State or other insurgent groups due to the general security situation.

12. The Authority found there is not a real chance of the applicant being seriously harmed in Kabul as a Shia Hazara, or due to his former or future work as a driver, or as a returnee from a western country, or due to generalised violence. Referring to all the circumstances, the Authority was not satisfied the applicant faced a real chance of harm in the reasonably foreseeable future in Kabul, which the Authority found can be safely accessed by air.

13. The Authority found the applicant did not meet the requirements of the definition of “refugee” in s 5H(1) of the Act and that the applicant failed to meet the criteria under s 36(2)(a) of the Act.

14. The Authority then turned to the issue of complementary protection and correctly identified the relevant law including referring to s 36(2A) and s 36(2B) of the Act.

15. The Authority found the applicant could safely access Kabul by air. The Authority referred to being satisfied that Shia Hazaras are accorded the same rights as other Afghanis who are not officially discriminated against, although as with other ethnic groups in areas where they are a minority they may have unequal access to local government jobs. The Authority referred to Kabul being a Hazara dominated city where the applicant has familial links and although the applicant has not resided there, he has a degree of familiarity with the city.

16. The Authority was not satisfied that discrimination as a Shia Hara, which the applicant may face, would result in the applicant being ultimately deprived of his life, or would constitute the death penalty or torture. The Authority was not satisfied such discrimination is at a level that would amount to cruel or inhuman treatment or degrading treatment or punishment.

17. The Authority did not accept that the treatment that the applicant may be exposed to as a Shia Hazara constitutes significant harm as defined in s 36(2A) of the Act. The Authority also referred to having found that there is not a real chance that the applicant would face other forms of harm in Kabul as a Shia Hazara and as the ‘real risk’ test imposes the same standard as the ‘real chance’ test, the Authority was not satisfied there is a real risk of the applicant suffering such harm on return to Kabul as a Shia Hazara.

18. The Authority referred to having found that there is not a real chance that the applicant will face harm in Kabul as a returning asylum seeker from the West, or due to an imputed pro-government profile arising from his former work as a driver. The Authority was not satisfied there is a real risk of the applicant suffering significant harm on return to Kabul for those reasons, given that the real risk test and real chance test were the same.

19. The Authority referred to the finding that the applicant may take up work as a driver if he were to return to Kabul, but given that Kabul’s larger size and greater opportunities for employment, and the more ready access to services, the applicant would not have an incentive to drive on roads in contested areas which are considered dangerous. The Authority also referred to the applicant having other employment options which he could utilise to supplement his income. The Authority was not satisfied that work of this kind, driving within Kabul, would expose the applicant to a real risk of significant harm or in restricting himself to Kabul would otherwise amount to significant harm in itself. The Authority found the applicant would not travel in the contested areas on return and found that the applicant does not face a real risk of significant harm on this basis.

20. The Authority then referred to the general security situation in Kabul and referred to the applicant not having a profile in Kabul, and was satisfied that the government and security forces continue to maintain effective control in Kabul. The Authority referred to considering all of the above and was not satisfied that there is a real risk of the applicant facing significant harm on the basis of the general security situation in Kabul for any reason.

21. The Authority referred to the applicant’s submission that it would not be reasonable to relocate and the difficulties that he may face. The Authority referred to the UNHCR’s views in relation to reasonableness of relocation and to country information. The Authority found the applicant speaks Hazaragi and was self-employed as a farmer for over 10 years, has over six years’ experience working as a stone cutter in Iran and has worked as a driver for two and a half years.

22. The Authority found the applicant has established networks in Australia and has secured employment and is currently working as a bricklayer. The Authority found the applicant had demonstrated resilience and resourcefulness and although the applicant may resume driving on return to Kabul, the Authority found, for the reasons already given, that it is reasonable for him not to resume driving on contested roads outside Kabul. The Authority was satisfied that the applicant will be able to obtain employment to enable him to subsist in Kabul.

23. The Authority referred to the applicant’s immediate family, being his mother, younger brother, wife and children, residing in Kabul. The Authority was satisfied that the applicant has demonstrated the ability and capability to establish himself in new locations, including the ability to create links within the Hazara community. The Authority found that the applicant was an able-bodied man without the vulnerabilities specified in the UNHCR report. The Authority was satisfied the applicant has the skills and life experience and resilience to relocate and establish himself in Kabul where employment, accommodation and other services will be available to him.

24. The Authority referred to incidents of violence in Kabul and was satisfied that the government and security forces continue to maintain effective control. The Authority referred to taking this, the country information relating to the situation in Kabul, and the applicant’s personal circumstances into account and was satisfied that it is reasonable for the applicant to relocate to Kabul where he does not face a real risk of significant harm.

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

Before this Court

1. The ground in the application is as follows:

   1. The respondent assessor (IAA) made a jurisdictional error by misapplying the relocation test in s 36(2B)(a) of the Migration Act 1958 (Cth) (Act).

   Particulars

   a. The IAA accepted that the applicant has a well-founded fear of persecution as a Shia Hazara driver on insecure roads around Jaghoir: at [47].

   b. The IAA was not satisfied that the applicant faces a real risk of significant harm in Kabul: at [49].

   c. The applicant claimed that there was “discrimination against Hazara people in Afghanistan”: see, for example, the applicant’s statutory declaration, dated 6 April 2016.

   d. The IAA accepted that “as a Shia Hazara the applicant may be subject to discrimination on return to Kabul”, but found that such discrimation would not constitute significant harm as defined in s 36(2A) of the Act: see [51].

   e. The IAA, however, did not consider whether being subject to discrimination in Kabul would make relocation there unreasonable: see [55] onwards.

Ground 1

1. Mr Liu of counsel on behalf of the applicant took the Court to the decision of MZYQU v Minister for Immigration and Citizenship [2012] FCA 1032, particularly at [60] to [61], and contended that the same error should, by implication, be found to have occurred in the present case, because the Authority had not expressly referred to a consideration of harm and the nature of discrimination that may not rise to the level of significant harm.

2. Mr Liu took the Court through the reasoning of the Authority and although accepting that the Authority had referred to the meaning of significant harm under s 36(2A) of the Act and had used the language referring to s 36(2B) of the Act, Mr Liu submitted that the Authority had not taken into account harm in the nature of discrimination not amounting to significant harm that would mean it was not reasonable for the applicant to relocate.

3. The Authority’s reasons are not to be read with a keen eye for error. The Authority’s reasons should be read as a whole. It is apparent from the Authority’s reasons, as summarised above in paragraphs 15 to 17, that the Authority took into account the applicant’s claims to fear harm by reason of discrimination being a Shia Hazara. Those claims were, on a fair reading, subsumed within the Authority’s reasons in referring to the applicant’s personal circumstances, as summarised in paragraphs 21 to 24 above, and the ultimate finding that it was reasonable for the applicant to relocate. No jurisdictional error as alleged in ground 1 is made out.

Conclusion

1. As the application fails to make out any jurisdictional error, the application is dismissed.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 23 November 2018