EUW19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FCCA 11
•27 January 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
EUW19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 11
File number(s): SYG 3181 of 2019 Judgment of: JUDGE DRIVER Date of judgment: 27 January 2021 Catchwords: MIGRATION – review of Immigration Assessment Authority decision – refusal of a protection visa – applicant claiming a fear of harm in Afghanistan – whether the Authority misapplied s 5J(3) of the Migration Act 1958 (Cth) considered – jurisdictional error established. Legislation: Migration Act 1958 (Cth) ss 5J, 36, 473DD
Federal Circuit Court Rules 2001 (Cth)
Cases cited: ADL17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 178
AYY17 v Minister for Immigration and Border Protection [2017] FCCA 2886
Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421
Number of paragraphs: 61 Date of hearing: 14 December 2020 Place: Sydney Counsel for the Applicant: Mr A Aleksov Solicitor for the Applicant: Landmark Law Group Counsel for the Respondents: Ms K Hooper Solicitor for the Respondents: Australian Government Solicitor
Table of Corrections 29 January 2021 In paragraph 55, the word “origin” has been replaced with “nationality”. ORDERS
SYG 3181 of 2019 BETWEEN: EUW19
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULUTRAL AFFAIRS
Respondent
ORDER MADE BY:
JUDGE DRIVER
DATE OF ORDER:
27 JANUARY 2021
THE COURT ORDERS THAT:
1.A writ of certiorari shall issue removing the record of the Immigration Assessment Authority decision made on 6 November 2019 into this Court for the purpose of quashing it.
2.A writ of mandamus shall issue, requiring the Immigration Assessment Authority to redetermine according to law the review referred to it.
REASONS FOR JUDGMENT
JUDGE DRIVER
INTRODUCTION AND BACKGROUND
The applicant seeks judicial review of a decision of the Immigration Assessment Authority (Authority) made on 6 November 2019. The Authority affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa.
The following statement of background facts is derived from initial written submissions filed on behalf of the Minister on 14 July 2020.
The applicant is a citizen of Afghanistan, who arrived in Australia as an unauthorised maritime arrival on 3 May 2013. He applied for a Safe Haven Enterprise Visa (SHEV) on 18 August 2017, and attended a SHEV interview on 17 September 2019. The delegate raised concerns regarding the authenticity of the applicant’s identity documents and the applicant’s inconsistencies regarding his name and date of birth, but did not reach a level of satisfaction required to assess the identity documents as bogus. The delegate found the applicant’s claimed identity was not supported, but for the purposes of the assessment accepted that the applicant’s name and year of birth was as claimed and that he is a citizen of Afghanistan.
The delegate refused to grant the SHEV on 9 October 2019.[1] On 14 October 2019, the application was referred to the Authority. On 5 November 2019, the applicant’s representative provided submissions and new information, including a certified and translated copy of the applicant’s taskera. On 6 November 2019, the Authority affirmed the decision of the delegate.
[1] Court Book (CB) 104-116
The applicant’s claims for protection are summarised at [11] of the Authority decision as follows:
(a)he is a Sunni Muslim of Pashtun ethnicity, from a named village and district in Paktia Province, Afghanistan (home area);
(b)from September 2012 to April 2013, he worked as a security guard in the Afghan Army Command Centre in his home area;
(c)the Taliban came to his home one night and told his family that he must stop working at the Command Centre immediately or they would kill him;
(d)the applicant left Afghanistan. The Taliban approached his family several times after he left, looking for him;
(e)the Taliban will kill him if he returns to Afghanistan because he worked for the government and because he will be viewed as an infidel for living in the West;
(f)there is nowhere safe in Afghanistan because the Taliban are everywhere and the authorities cannot protect him.
Authority decision[2]
[2] All reference to paragraphs, unless otherwise specified, are references to the Authority decision at CB 186-197.
New material
The Authority had regard to translations of the applicant’s taskera and a police clearance letter. It reasoned at [5] that although the translations were new, both documents had previously been provided with his SHEV application and so were not new.
The Authority accepted the applicant’s submissions that he was illiterate and unrepresented before the delegate, and therefore did not realise the delegate’s lack of satisfaction about his identity and home area would form part of the delegate’s reasons for finding his claims more generally were not credible. The Authority was satisfied at [6] there were exceptional circumstances to justify considering the new information comprising identity documents for the applicant’s family members.
The Authority found at [7]-[8] there were no exceptional circumstances to justify considering three photographs of a brother holding a copy of his (the brother’s) taskera and local newspaper, or the photo of the envelope used by his family to send the new information to him from Afghanistan. The Authority had already accepted at [8] that the taskeras and the photos did not add any “further weight or information to the taskeras” given that “the issue of when and how he received the copies of the taskeras and passports from his family members is not in issue”.
The Authority found that the documents constituting “new country information” pre-dated the delegate’s decision. Furthermore, the Authority found that the applicant’s claim that he could not provide the information previously because he may have an undiagnosed psychological illness was not supported by medical evidence. The Authority found at [9] that s 473DD(b) of the Migration Act 1958 (Cth) (Migration Act) was not met, therefore s 473DD was not met. The new country information was not considered.
The Authority accepted at [10] that the applicant was a citizen of Afghanistan from his home area and did not require the applicant to obtain a passport from the Afghan Embassy, or originals of the applicant’s scanned identity documents.
Refugee assessment
The Authority did not accept at [16] that the applicant was unable to answer some of the delegate’s questions because he is an uneducated and illiterate person, noting that the applicant was able to provide considerable detail in his entry interview and SHEV application.
The Authority found at [16]-[17] that the applicant provided little detail and no documentary evidence or supporting statements to evidence his claim to have worked at the Command Centre, and that his answers in the SHEV interview were vague and lacking in detail. The applicant provided an untranslated document which he said confirmed his employment at the Command Centre in 2012, however was not able to provide a satisfactory explanation as to why the same photograph appears on the applicant’s taskera, issued in 2007, and on the untranslated document which purportedly confirms his employment in 2012. The Authority also did not accept, at [18], that a police clearance certificate was evidence of employment or preparation for employment at the Command Centre.
The Authority found at [17] that the applicant’s description of the work he undertook for a man (“A”) at the Command Centre to be implausible, as the applicant claimed not to have a uniform, carry a gun, or have some type of security pass even though he was working as a guard, and that he was required to check the papers of persons coming see A, notwithstanding that he is illiterate. The Authority also found at [19] that it was unlikely that the applicant would undertake such work at the Command Centre given the presence of the Taliban in his village, or that it would have taken the Taliban six months to make a threat against the applicant.
The Authority also raised concerns about the speed at which the applicant was able to leave Afghanistan, including the fact that the applicant already had a passport and that his father was able to give his uncle $19,000USD to pay the smuggler within days of the Taliban threatening him. The Authority found at [20] that the applicant’s family had pre-prepared the applicant’s journey out of Afghanistan.
Given the speed with which the applicant’s journey to Australia was planned, and the lack of convincing detail or evidence that he worked at a Command Centre, the Authority concluded at [22] that the applicant did not work for the Command Centre and was not threatened by the Taliban for this reason, and therefore did not face a real chance of harm for this reason.
The Authority found at [23] that the applicant was a practising Sunni and therefore would not be viewed as an infidel in terms of his religious practice.
The Authority accepted at [24]-[25] that persons associated with western countries can be targeted by the Taliban and insurgent groups, but found that country information did not support the claim that western returnees have a real chance of being targeted for this reason on return. The Authority found at [25] that the applicant was an ordinary Sunni Pashtun man returning to his home area, and would not face a real chance of harm for reason of having spent time in a western country.
The Authority accepted that civilian casualties were an on-going issue in Afghanistan, however there was no information before it that any harm had come to the applicant’s family before or since he left Afghanistan, or that there were any incidents in or near his home village. The Authority found at [28] that the applicant did not face a real chance of harm from generalised or insurgent violence in his home area.
Complementary protection assessment
The Authority found at [33] that the applicant did not face a real chance of harm as a Sunni Pashtun in his home area or as a failed asylum seeker returning from the west, or because of generalised violence or conflict in his home province.
The Authority concluded that the applicant did not meet s 36(2)(a) or s 36(2)(aa) of the Migration Act, and affirmed the decision of the delegate.
THE CURRENT PROCEEDINGS
These proceedings began with a show cause application filed on 4 December 2019. The matter came before me for a show cause hearing on 22 July 2020 at which time the applicant was legally represented. After hearing argument from the parties, I made a show cause order in the following terms:
1. Pursuant to rule 44.12(1)(b) of the Federal Circuit Court Rules 2001 (Cth), the Minister is ordered to show cause why relief should not be granted in relation to the Authority’s interpretation of s.5J(3) of the Migration Act 1958 (Cth) at [25] of its reasons.
I listed the matter for a final hearing on 8 December 2020, but that listing was amended to 14 December 2020.
In addition to the book of relevant documents filed on 21 January 2020, I have before me as evidence the affidavit of Elizabeth Warner Knight made on 27 October 2020, to which is annexed extracts from country information available to the Authority for the purposes of its review.
I have been assisted by pre hearing written submissions prepared by counsel for the applicant and the Minister as well as their oral submissions at the trial.
CONSIDERATION
Applicant’s contentions
The premise of the Authority’s reasoning at [25] is that it had identified that the applicant may need to maintain a low profile in relation to his having spent time in Australia (ie, his “westernisation” claim).
The Authority stated that needing to keep such a low profile would not be an “unacceptable modification” within the meaning of s 5J(3), thereby excluding him from meeting the definition of a refugee.
The applicant contends that the expression “unacceptable modification” is plainly the wrong test. The correct test, on the terms of s 5J(3) itself, requires attention to whether a person could take a reasonable step to modify their behaviour to avoid harm. There is nothing about “acceptability” or “unacceptability” involved in that task.
It follows, in the applicant’s submission, that the Authority applied the wrong test.
That error is said to have been material. It is not lightly to be supposed that the application of a wrong test was immaterial, the adoption of a wrong test results in a misdirected inquiry and it is especially difficult to engage in the “counter-factual” with clarity, one just does not know where the analysis of the Authority would have gone upon the correct test.
The applicant submits that it cannot be said that there is not any material difference between “unacceptability” and reasonableness. The two things direct attention to different concepts, reasonableness is a well-known notion in the law, a legal fiction that is applied in various contexts, for the purpose of directing attention to “objective” standards that seeks to “rise above” value-judgments. It directs attention to what the general body of right-thinking people might think to be appropriate in the circumstances, whether that be as to a threshold to be applied or as to a range of conduct that is tolerable within the structures of our society. The mental easiness of stating a reasonableness test, of course, does not deny serious complexity in applying a reasonableness test in any given case, but it is critical that one is directed “to the middle”, and not to the extreme.
A test of unacceptability or acceptability, however, more naturally directs attention to the extreme, it is a standard that asks at what point should toleration start or end.
Natural English grammar suggests that something might not be a reasonable adjustment, even if it could not be said to be “unacceptable”, in this context.
The applicant submits that, at that level, he should succeed.
The applicant also submits that his time in Australia is immutable, as it is a matter of history. The effect upon him, his character, persona, and life-outlook, of his time in Australia is not something that could easily be deleted upon removal from Australia. It is said to be realistic to think that the attitudinal and cultural shifts that might have taken place whilst living in Australia constitute a “characteristic” of the applicant within the meaning of s 5J(3)(b). If that were to be accepted by the Authority, then s 5J(3) might not work to exclude the applicant from meeting the definition of a refugee, given the limitation upon the exclusion set out in s 5J(3)(b).
It is not suggested that the applicant would have succeeded in the review with these arguments. However, he might realistically have done so, and that is all that the principle of “materiality” requires to be shown.
Minister’s contentions
Relevantly, at [24], the Authority considered the applicant’s claim to fear harm as a returnee from a western country. The Authority found that country information did not support a claim that western returnees have a real chance of being targeted for this reason on return.
At [25], the Authority said it accepted that persons associated with western countries (particularly international forces or non-government organisations) can be targeted by the Taliban and insurgent groups. However, the lack of reporting of western returnees being targeted in this way, particularly given the large numbers of people returning to Afghanistan, indicated that it was “an extremely rare occurrence”.
The Authority continued:
…DFAT reports most returnees take measures to conceal their association with the country [from] which they returned, and keep a low profile on return. There is nothing in the applicant’s profile to suggest he would do anything other than keep a low profile on return. I do not accept the need to keep a low profile about time spent in Australia would amount to [an] unacceptable modification that falls within s.5J(3). I find the applicant as an ordinary Sunni Pashtun man returning to his home area, he would not face a real chance of harm for reason of having spent time in a western country.
The Minister submits that the phrase “immutable characteristic” in s 5J(3)(b) of the Migration Act should be given its ordinary meaning.
Immutable means: “not mutable; unchangeable; unalterable; changeless”. The word “characteristic” when used as a noun means “a distinguishing feature or quality”.[3]
[3] Macquarie Dictionary 7th edition (2017)
The Minister contends that while a person’s past travel destinations may distinguish or define that person’s character or features and thus constitute a “characteristic” of the person, they will not always do so. For example, a person might have travelled in his or her lifetime to many different locations. Every single instance of travel, no matter how short or how trivial, cannot be said to give rise to a characteristic of the person.
Accordingly, it will be a question of fact in any given case for the decision-maker to determine whether or not a particular aspect of a person’s past (such as travel to a particular region) gives rise to any unchangeable characteristic in the person which is always perceived by his or her alleged persecutors.
In the present case, the Minister submits that the Authority’s findings at [24]-[25] are to the effect that the time the applicant spent in a western country (Australia) did not give rise to any “characteristic”. That conclusion is said to have been open by reference to the evidence before the Authority, which did not suggest that every person who travelled to and returned from a western country was imputed with any particular “characteristic” (pro-western/pro-international community/westernised) in the eyes of the Taliban or insurgent groups. It was also inherently less likely that persons with the profile of the applicant[4] would be attributed with any profile or characteristic.
[4] second sentence of [25]
In the alternative to the submissions above, the Minister submits that the Authority’s reasons do not turn on or depend on the s 5J(3) finding. This is said to be because the Authority never found there was a well-founded fear of persecution or real chance of serious harm, which the applicant needed to modify his behaviour in order to avoid. Any error in applying s 5J(3) is thus said not to be material, and therefore not jurisdictional.[5]
[5] Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 at 433[4], 445-446[44]-[49] per Bell, Gageler and Keane JJ
The Minister contends that the Authority’s findings by reference to country information are sufficiently clear to demonstrate that it found the applicant faced no real chance of serious harm. The country information cited by the Authority in support of its findings at [24]-[25] is also cited by the delegate at CB 114 in making comparable findings, and is annexed to the affidavit of Ms Warner Knight. The relevant passages are:
(a)EASO European Asylum Support Office, “EASO Country of Origin Information Report; Afghanistan; Individuals targeted under societal and legal norms”, 12 December 2017 at [8] pages 92-93;[6]
(b)DFAT, “Country Information Report Afghanistan”, 18 September 2017 from page 30, in particular [5.20] and [5.22] at page 31;[7] and
(c)DFAT, “Country Information Report Afghanistan”, 27 June 2019 from page 50 and in particular [5.41] and [5.43] at page 51.[8]
[6] affidavit pages 19-20
[7] affidavit page 7
[8] affidavit page 12
Further, there is said to have been no issue of “modification” of behaviour by the applicant (cf s 5J(3) below: to “take reasonable steps to modify his or her behaviour”, emphasis added). The applicant had not returned to Afghanistan as a returnee from the west, before. There was no relevant past behaviour for him to change or modify. Nothing in the applicant’s claims was to the effect that he would wish to promote his returnee status and that for him not to do this would itself be persecutory.
The main complaint in the applicant’s submissions filed in these proceedings is said to be a different one to that which is addressed above. Specifically, the applicant takes issue with the Authority’s use of the words “unacceptable modification” whereas s 5J(3) does not use the word “unacceptable” (it does use the word “modification”).
The Minister submits that no jurisdictional error is demonstrated. The Authority stated, “unacceptable modification that falls within s.5J(3)” (emphasis added). When the Authority’s reasons are read fairly as they must be, the word “unacceptable” can be seen to be directed to those modifications that it is legally impermissible (or, unacceptable) for the Authority to require an applicant to make to his or her behaviour. That is, the modifications that are listed at sub-paragraphs (a) to (c) of s 5J(3).
The issue is said to be not about distinguishing between “reasonableness” and “acceptability”. The section speaks of taking “reasonable steps” to modify behaviour, but then carves out certain types of (legally “unacceptable” or “impermissible”) modifications from its operation. If the modification would have any of the effects listed in ss 5J(3)(a)-(c), then the reasonableness or otherwise of the steps by which the modification might be put into place does not arise.[9] The word “unacceptable” when used by the Authority was directed to those modifications which are carved out, not to the taking of steps and whether or not they were reasonable.
[9] ADL17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 178 per White, Bromwich and Burley JJ at [23]
Resolution
At the trial, the applicant relied upon an amended application which expanded somewhat upon my show cause order. The ground thus clarified is as follows:
1. The IAA applied the wrong test.
Particulars
a. The premise of the IAA’s reasoning at [25] is that it had identified that the applicant may need to maintain a low profile in relation to his having spent time in Australia (ie, his “westernisation” claim).
b. The IAA said that needing to keep such a low profile would not be an “unacceptable modification” within the meaning of s 5J(3), thereby excluding him from meeting the definition of a refugee.
c. The expression “unacceptable modification” is plainly the wrong test. The correct test, on the terms of s 5J(3) itself, requires attention to whether a person could take a reasonable step to modify their behaviour to avoid harm. There is nothing about “acceptability” or “unacceptability” involved in that task.
The issue between the parties concerns the Authority’s reasoning at [25]:[10]
I accept persons associated with western countries (particularly international forces or non-government organisations) can be targeted by the Taliban and insurgent groups, but the lack of reporting on western returnees being targeted in this way, particularly given the large numbers of people returning to Afghanistan, indicates it is an extremely rare occurrence. DFAT reports most returnees take measures to conceal their association with the country from which they returned, and keep a low profile on return. There is nothing in the applicant's profile to suggest he would do anything other than keep a low profile on return. I do not accept the need to keep a low profile about time spent in Australia would amount to an unacceptable modification that falls within s.5J(3). I find the applicant as an ordinary Sunni Pashtun man returning to his home area, he would not face a real chance of harm for reason of having spent time in a western country.
[10] CB 191-192
That reasoning was not repeated in relation to the complementary protection assessment but, on the state of the present authorities, nothing turns on that. This is on the basis that s 5J(3) bears on the refugee assessment for a protection visa rather than the complementary protection assessment.
Section 5J(3) is in the following terms:
(3) A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a) conflict with a characteristic that is fundamental to the person's identity or conscience; or
(b) conceal an innate or immutable characteristic of the person; or
(c) without limiting paragraph (a) or (b), require the person to do any of the following:
(i) alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii) conceal his or her true race, ethnicity, nationality or country of origin;
(iii) alter his or her political beliefs or conceal his or her true political beliefs;
(iv) conceal a physical, psychological or intellectual disability;
(v) enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi) alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
I respectfully disagree with this Court’s interpretation of the provision in AYY17 v Minister for Immigration and Border Protection.[11] Paragraph (c) does not govern the interpretation of paragraphs (a) and (b). Paragraph (c) simply provides a non exhaustive list of examples of the application of (a) and (b).
[11] [2017] FCCA 2886 at [44]
Secondly, there is no definition of the expression “country of origin” in sub-paragraph (c)(ii). The expression should therefore be given its ordinary or natural meaning. A person’s country of origin may be their country of nationality, or it might be their country of birth if different from their country of nationality, or it might be the country in which they have habitually lived before coming to Australia. It follows that it might include Australia if the person was born here, even though not having Australian nationality.
It would be stretching the language of the sub-paragraph to interpret “country of origin” as including the person’s country of most recent refuge, Australia. Nevertheless similar problems arise for a person seeking to conceal his true race, ethnicity, nationality or country of origin as would arise for a person seeking to conceal a long period of residence in Australia. The Authority might have been correct in finding that the applicant would not seek to publicise the fact that he had spent time in Australia. It is one thing, however, for a person to choose not to reveal a period of residence in Australia. It is quite another thing, however, for a person to attempt to conceal the many traces of such residence. These may include accent when speaking, body cues and social cues (such as shaking hands) or a myriad of other things that may give away the person’s exposure to Australian culture.
The Authority appeared to recognise this at [25] where it not only stated that the applicant would not do anything other than keep a low profile on return but then added that it did not accept the need to keep a low profile about time spent in Australia would amount to an unacceptable modification for the purposes of s 5J(3).
The problem, as I see it, is that as the legislature has recognised, it is not reasonable to expect a person to seek to conceal that which they cannot control. The significance of an immutable characteristic is made clear in the Explanatory Memorandum to the Migration and Maritime Powers Legislation Amendment (Resolving The Asylum Legacy Caseload) Bill 2014 at [1193] which states that:
[t]he reference in new paragraph 5J(3)(b) to an “immutable” characteristic is intended to encompass a shared common background that cannot be changed. This could be an attribute which the person has acquired at some stage of his or her life such as the health status of being HIV positive, or a certain experience such as being a child soldier, sex worker or victim of human trafficking. …
The flaw in the Authority’s reasons is that, while it was entitled to find that the applicant would not seek to publicise the fact that he had lived in Australia (for over seven years), it then went on to find that it would be reasonable for the applicant to conceal that fact. There needed to be more than that bald statement. In order to complete its review, the Authority needed to consider whether it would be possible, let alone reasonable, for the applicant to attempt to conceal what could be a great many indicators of his cultural association with Australia. The review thus being incomplete, the veracity of the Authority’s reasoning in respect of the applicant’s other claims is not to the point.
I agree with the applicant that the Authority fell into error, that the error was material and goes to jurisdiction.
CONCLUSION
The applicant has succeeded in establishing that the decision of the Authority is affected by jurisdictional error. The applicant should receive the relief he seeks. I will make orders for the issuing of writs of certiorari and mandamus.
I certify that the preceding sixty-one (61) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Driver. Associate:
Dated: 29 January 2021
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