EXU17 v Minister for Immigration
[2018] FCCA 1093
•2 May 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| EXU17 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 1093 |
| Catchwords: MIGRATION – Immigration Assessment Authority – application for a protection visa – application for an extension of time under s 477 – whether reasonable explanation for the delay – whether the merits of the application warrant an extension of time – whether the Authority applied a relative test rather than an objective test in determining whether there was a real risk the applicant would suffer significant harm – no jurisdictional error identified – application for an extension of time under s 477 dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.5H, 5J, 36, 473CB, 473DD, 477 |
| Cases cited: SZNJG v Minister for Immigration and Border Protection [2018] FCA 334 |
| Applicant: | EXU17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 3433 of 2017 |
| Judgment of: | Judge Street |
| Hearing date: | 2 May 2018 |
| Date of Last Submission: | 2 May 2018 |
| Delivered at: | Sydney |
| Delivered on: | 2 May 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr A Byrne |
| Solicitors for the Applicant: | D'Ambra Murphy Lawyers |
| Counsel for the Respondents: | Mr B Kaplan |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application for an extension of time under s 477 of the Migration Act 1958 (Cth) is dismissed.
The applicant pay the first respondent’s costs fixed in the amount of $3,667.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3433 of 2017
| EXU17 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Background
This is an application for an extension of time under s 477 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Immigration Assessment Authority (“the Authority”) under Part 7AA made on 9 June 2017 affirming a decision of the delegate not to grant the applicant a protection visa.
The applicant was found to be a citizen of Afghanistan and his claims were assessed against that country. The applicant arrived in Australia on 28 March 2013 as an unauthorised maritime arrival. The applicant was found to be a Shia Hazara from Afghanistan who lived in Iran. The applicant lived in Iran between 2007 and 2010, when he was then deported back to Afghanistan.
The applicant thereafter on his return was employed as a taxi driver transporting passengers. The applicant alleged that he was stopped by the Taliban whilst driving his taxi on two occasions, and on one occasion his name was placed in a notebook and threatened to harm the applicant if he was found on the same road again. The applicant then stopped driving his taxi and travelled to Kabul where he made arrangements to leave Afghanistan.
The applicant claimed to fear harm on return as a Shia Hazara, as a returnee from a Western country and due to an imputed opposition to the Taliban and other extremist groups. The applicant also claimed to fear harm from the Taliban as they have his details and have access to technology to find him anywhere in Afghanistan. The applicant alleged that if he is found he will be killed.
On 18 November 2016, the delegate found the applicant failed to meet the criteria for the grant of a protection visa.
The Authority’s decision
On 25 November 2016, the Authority wrote to the applicant identifying that the application for the protection visa had been referred to the Authority for review. The letter explained there were limited circumstances in which the Authority could consider new information and provided an attached fact sheet and practice direction giving the applicant an opportunity to put on new information and submissions.
Submissions were provided to the Authority on behalf of the applicant on 16 November 2016 and those submissions were referred to and considered in the Authority’s reasons. The Authority found some of the information to be new information and had regard to both limbs of s 473DD of the Act and was not satisfied there were exceptional circumstances to consider the same.
On 1 February 2017, the Authority invited the applicant to comment on new information obtained by the Authority and submissions were provided by the applicant’s representative on 15 February 2017 in response to that invitation. The Authority was satisfied there were exceptional circumstances to justify considering that response information and referred to the same in the Authority’s reasons.
The Authority’s reasons referred to having identified the background to the visa application and having regard to the material referred under s 473CB of the Act. The Authority summarised the applicant’s claims for protection.
Assessment of Refugee Convention criteria
The Authority accepted that the applicant had been working as a taxi driver and accepted it as plausible that he had been stopped by the Taliban. The Authority accepted that generally the applicant was able to work as a taxi driver within the area without coming to the attention of the Taliban, and that he continued driving after he was first stopped as he was travelling on the routes all the time, and as he knew the area and he was not harmed or threatened by the Taliban on this occasion. In that regard, the Authority did not accept what the applicant had said in the statement of claims that he had been beaten. The Authority was satisfied the applicant was stopped by the Taliban in another district on the second occasion and was threatened and warned not to travel there again.
The Authority also accepted the applicant was stopped on roads in a particular area which resulted in him ceasing his work as a taxi driver and his departure from his home region. The Authority did not accept that this indicated that the applicant would be of interest to the Taliban on return. The Authority was not satisfied after the passage of nearly five years, and having complied with the demands, that the applicant will face a real chance of harm as a result of the incident involved on the roads or his previous role as a Shia Hazara taxi driver.
The Authority took into account the provisions of s 5J(3) of the Act and was not satisfied that it could be reasonably expected that the applicant remaining in his home region or adjacent Hazarajat areas and not travel outside them, to safely access employment relevant to his skills.
The Authority referred to the requirement that the real chance of persecution must relate to all areas of the receiving country and was not satisfied the applicant faces a well-founded fear of persecution in Mazar-e-Sharif or Kabul. The Authority referred to the applicant’s submission in relation to sophisticated technology to advance attacks and referred to the finding that the Authority did not accept the applicant faces a real chance of serious harm in the applicant’s home region or on the road due to his former work as a taxi driver.
Accordingly, the Authority considered it remote, despite the submissions on behalf of the applicant, that his former work as a taxi driver or any profile arising from this work would come to the notice of the Taliban or any other anti‑government elements (AGEs) in Mazar‑e‑Sharif or Kabul, or that they would pursue him in these cities, given they are both cities with large urban areas of mixed ethnicity where the applicant’s background is unknown and which is remote from the applicant’s home region. The Authority found it was not satisfied the applicant faces a real chance of harm in Mazar-e-Sharif or Kabul should he resume taxi driving.
The Authority was not satisfied that if the applicant is a taxi driver within Kabul or Mazar-e-Sharif he would face a real chance of harm. The Authority referred to the requirements of s 5J(3) of the Act and was satisfied that limiting the applicant’s work as a taxi driver in government controlled areas in Mazar-e-Sharif and Kabul would not conflict with a characteristic which is a fundamental to the applicant’s identity or conscience. The Authority found that requiring the applicant to modify his behaviour by not travelling through contested areas outside Mazar-e-Sharif or Kabul is not one which would conceal an innate or immutable characteristic of the applicant or as otherwise prescribed by s 5J(3)(c) of the Act.
The Authority referred to Kabul and Mazar-e-Sharif being commercial and financial centres in Afghanistan and offering greater opportunities than rural areas, such as the applicant’s home region. The Authority referred to the size of Kabul and Mazar-e-Sharif and considered that the applicant would be able to make a living as a taxi driver within either city without recourse to travel in contested areas. The Authority also noted the applicant has other skills and experience he can rely upon to secure and supplement his income and was not persuaded that he could not find work as a taxi driver in Mazar‑e‑Sharif or Kabul, or that he would be prevented from obtaining other employment to enable him to subsist in either city. The Authority found the applicant could take reasonable steps to modify his behaviour by restricting his travel as a taxi driver to avoid a real chance of persecution on the roads outside Mazar-e-Sharif or Kabul.
The Authority noted the applicant had no family in other parts of Afghanistan other than his home region and that the employment and services he requires are available in Kabul and Mazar-e-Sharif. The Authority found the applicant would not be required to travel in contested areas and that it could reasonably be expected that he remain in Kabul or Mazar-e-Sharif where he would be able to safely access employment relevant to his skills. The Authority found the applicant does not have a well-founded fear of persecution as a taxi driver in Mazar-e-Sharif or Kabul.
The Authority referred to submissions concerning sectarian violence being on the rise in Kabul. The Authority referred to the Taliban being a significant force in Afghanistan and responsible for the majority of attacks. The Authority accepted that the Taliban is active in Kabul and Balkh and has conducted attacks in Mazar-e-Sharif. The Authority referred to particular incidents and country information and made reference that despite these attacks Mazar‑e‑Sharif still had the lowest number of civilian victims, as the attacks almost exclusively targeted national security forces. The Authority found while there had been a greater number of incidents in Kabul, these attacks targeted groups with whom the applicant as a Shia Hazara has not been associated.
The Authority referred to other country information indicating that there was an overall decline in the security situation in Afghanistan in 2015 which continued into 2016, although there was a slight decrease in the overall number of security incidents. The Authority referred to the high military presence in Kabul and that complex attacks have occurred. The Authority was satisfied the government continues to maintain effective control in Kabul.
The Authority referred to country information in relation to Mazar‑e‑Sharif being one of the biggest commercial and financial centres in Afghanistan and is regarded as one of the safest cities in Afghanistan, with the relative security of the province being attributed to a monopoly on power, even in the province’s most remote regions. The Authority was satisfied that the government continues to maintain effective control and ensures Mazar-e-Sharif’s ongoing stability and security.
The Authority referred to country information in relation to the significant populations of Shia Hazaras residing in Mazar-e-Sharif as well as Kabul. The Authority accepted that the applicant, as a returnee Shia Hazara, may experience discrimination on return in relation to employment as a consequence of nepotism, even within the Hazara community, particularly as he does not have family links in Mazar‑e‑Sharif or Kabul where he has not lived before. The Authority, nonetheless, was satisfied that there is not a real chance that as a consequence of such discrimination the applicant would be denied the capacity to earn a livelihood or that he would be subject to economic hardship such that it would threaten his capacity to exist or would otherwise suffer treatment that may be considered serious harm within the meaning of s 5J of the Act.
The Authority made further reference to incidents in Kabul and Mazar‑e‑Sharif and was satisfied that the isolated incidents in or near Mazar-e-Sharif in 2011 and 2016 do not indicate the applicant faces a real chance of persecution as a Shia Hazara upon return to Mazar‑e‑Sharif in the reasonably foreseeable future.
The Authority was not satisfied that the attacks on Shias in Kabul indicate an ongoing wider sectarian campaign in the reasonably foreseeable future. The Authority was not satisfied 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 that the applicant, as a returnee who lived in a Western country for a significant period, will be targeted in Mazar-e-Sharif or Kabul by insurgents, or that the applicant would be targeted on return to either city as a Shia Hazara returnee with an imputed pro-Western political opinion. The Authority found the applicant does not have identifiable affiliations with international organisations or the Afghan Government. The Authority was not satisfied the applicant would be imputed with an adverse political opinion in Mazar-e-Sharif or Kabul as a Hazara Shia who resided in a Western country.
Taking into account all the circumstances, the Authority was not satisfied the applicant faces a real chance of harm upon return to Kabul or Mazar-e-Sharif and found the applicant could safely access either by air.
The Authority found the applicant did not meet the requirements of the definition of refugee in s 5H(1) of the Act and found the applicant did not meet the criteria under s 36(2)(a) of the Act.
Assessment of complementary protection criteria
The Authority then turned to the consideration of whether the applicant met the criteria for complementary protection. The Authority correctly set out the law that the Authority is required to undertake in that regard and the Authority’s reasons reflect the law being taken into account and applied in relation to a real risk of significant harm.
The Authority made reference to the findings made by the Authority and reference to s 36(2B) of the Act that there is taken not to be a real risk that a person will suffer significant harm in a country if it would be reasonable for the person to relocate to an area of the country where there would not be a real risk the person will suffer significant harm. The Authority was not satisfied that the applicant faces a real risk of significant harm in Kabul or Mazar-e-Sharif which he can safely access by air. In that regard, the Authority referred to country information in relation to Kabul and Mazar-e-Sharif.
The Authority referred to the potential discrimination as a Hazara and did not accept that the treatment constitutes significant harm as defined in s 36(2A) of the Act. The Authority found there is not a real chance the applicant would face other forms of harm in Mazar-e-Sharif or Kabul as a Shia Hazara, and that the ‘real risk’ test composes the same standards as the ‘real chance’ test. The Authority was not satisfied there is a real risk of the applicant suffering such harm on return to Mazar-e-Sharif or Kabul as a Shia Hazara.
The Authority made reference to the finding that there is not a real chance the applicant will face serious harm in Mazar-e-Sharif or Kabul as a returnee asylum seeker from the West or due to an imputed pro-government profile arising from his former work as a taxi driver in his home region. The Authority made reference to the real risk imposing the same standard as real chance test and referred to the reasons already given, which supported the Authority not being satisfied there is a real risk of the applicant suffering significant harm on return to Mazar-e-Sharif or Kabul.
The Authority found the applicant may continue to drive a taxi if he were returned to Mazar-e-Sharif or Kabul, but given Kabul and Mazar‑e‑Sharif’s larger size, the greater opportunities for employment, the larger pool of potential passengers and the more ready access to services, that the applicant would not have the incentive to drive on roads in contested areas which are considered dangerous. The Authority found the applicant also has other employment options which he could utilise to supplement his income in both cities. The Authority was not satisfied work of this kind, being a taxi driver, within Mazar‑e‑Sharif or Kabul would expose the applicant to a real risk of significant harm, or that restricting himself to Kabul or Mazar-e-Sharif would otherwise amount to significant harm in itself. The Authority found that the applicant would not travel in a contested area on return, and found the applicant does not face a real risk of significant harm on that basis.
The Authority referred to the general security situation in Mazar-e-Sharif and Kabul and was not satisfied there is a real risk of the applicant suffering significant harm on return to Mazar-e-Sharif or Kabul. The Authority was not satisfied the applicant had the relevant profile of being a person associated with the government or the international community in Kabul.
The Authority made express reference to the applicant’s submissions that it would not be reasonable for the applicant to relocate due to his lack of familial, social or other networks in Afghanistan, which would hinder his ability to earn a livelihood and obtain accommodation. The Authority referred to the country information cited by the representative in that regard. The Authority made reference to the UNHCR’s view that reasonableness of relocation is dependent on effective availability of traditional support mechanisms, provided by members of the applicant’s extended family or ethnic group, and advises that the only exceptions for requiring external support are single, able-bodied men and married couples of working age without identified specific vulnerabilities.
The Authority made reference to other DFAT country information and found that Mazar-e-Sharif and Kabul are under effective control of the Afghan Government. The Authority referred to Mazar-e-Sharif being one of the biggest commercial and financial centres of Afghanistan and referred to the opportunities in that regard. The Authority accepted despite there being relatively more employment opportunities in Kabul and Mazar-e-Sharif, there is unemployment and underemployment.
The Authority found the applicant personally had completed six years of education in Afghanistan, is literate in Dari and Hazaragi, and speaks Farsi. The Authority noted the applicant was self-employed as a farmer for seven years from the age of 13 before travelling to Iran where he worked in construction doing stone cutting for three years. The Authority referred to the applicant’s return to Afghanistan and work as a taxi driver and that in Australia he was currently working as a bricklayer. The Authority found the applicant had demonstrated resilience, resourcefulness and a range of skills, and although the applicant may resume taxi driving in Mazar-e-Sharif or Kabul, the Authority found that it is reasonable for the applicant not to resume taxi driving on contested roads outside Kabul and Mazar-e-Sharif. It was in these circumstances the Authority was satisfied the applicant would be able to obtain employment to enable him to subsist in Mazar-e-Sharif or Kabul.
The Authority made reference to the applicant’s immediate family and not having family members in Mazar-e-Sharif or Kabul. The Authority was satisfied the applicant has demonstrated an ability and capability to establish himself in new locations including the ability to create links within the Hazara community despite a lack of family and other connections. The Authority found the applicant is an able‑bodied male of working age who does not present with any health problems or other specific vulnerabilities identified by the UNHCR as requiring durable support.
The Authority accepted that the applicant’s relocation to Kabul or Mazar-e-Sharif may mean he continues to be separated from his family in the reasonably foreseeable future. The Authority found the applicant has demonstrated capacity and willingness to live apart from his family for an extended period, referring to both his travel to Iran and to Australia.
The Authority made reference to general violence in Mazar‑e‑Sharif being sporadic and that although there are more incidents of violence in Kabul, the Authority was satisfied that government and security forces continue to maintain effective control. The Authority referred to taking these matters into account and country information relating to the situation in Mazar-e-Sharif and Kabul, as well as the applicant’s personal circumstances. The Authority found that it was satisfied it is reasonable for the applicant to relocate to Mazar-e-Sharif or Kabul where he does not face a real risk of significant harm.
The Authority found there are not substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Afghanistan there is a real risk the applicant would suffer significant harm. The Authority found the applicant did not meet the criteria under s 36(2)(aa) of the Act and affirmed the decision under review.
Before this Court
Mr Byrne of counsel on behalf of the applicant drew the Court’s attention to the useful summary by the learned Markovic J in SZNJG v Minister for Immigration and Border Protection [2018] FCA 334 at [24] – [25] in relation to the principles to be applied concerning an extension of time.
Mr Byrne submitted that the applicant had provided a satisfactory explanation for the delay, which was almost four months. Mr Byrne took the Court to the applicant’s affidavit in which he sought to explain that following the delivery of the decision by the Authority he was provided with only limited information as a result of communications sometime between 9 June 2017 and 4 July 2017. The applicant alleged that he made an assumption that the adverse decision would automatically be referred to the Federal Circuit Court of Australia.
No proper basis for that assumption is identified. The decision arising from the fast-track process in relation to the Authority is not a reasonable basis for any such assumption by the applicant. The applicant was provided with a decision and information identifying the time limit and said that he did not read English. The applicant at the relevant time was represented. The applicant’s delay was substantial. I do not regard the explanation by the applicant in relation to the circumstances of the present case as being a satisfactory explanation for the delay.
No prejudice is suggested by the Minister in the present case and the real issue are the merits of the substantive application.
The proposed grounds
The proposed grounds in the application are as follows:
1. The Respondent fell into jurisdictional error by construing and applying the term “real risk” in s 36(2B)(a) of the Migration Act 1958 (Cth) as if concerned with relative risk rather than objective risk.
Particulars
i. Section 36(2B)(a) requires determination of inter alia whether the Applicant would be at real risk of suffering significant harm in the area identified for relocation;
ii. The test of “real risk” is an objective test, requiring the Respondent to consider the actual risk of significant harm to which the Applicant would be exposed were he to relocate to the area identified by the Respondent.
iii. Further to (ii), the test of "real risk" is not a relative test (that is, it is not concerned with the risk of harm to which the Applicant would be exposed in the proposed area for relocation by comparison against the risk of harm in the area from which it is proposed that the Applicant relocates);
iv. In deciding that there would not be a real risk of significant harm to the Applicant were he to relocate to the area identified by the Respondent, the Respondent's analysis (particularly in [54]-[55] of its decision dated 9 June 2017) reveals that the Respondent erroneously adopted a "relative test" rather than objective test.
2. The Respondent fell into jurisdictional error by conflating the two limbs in the relocation test in s 36(2B)(a) of the Act in its consideration and assessment of the risk of harm to the Applicant.
Particulars
i. Section 36(2B)(a) requires determination:
A. first, whether the Applicant would be at real risk of suffering significant harm in the area identified for relocation;
B. second, if the matter in (A) is satisfied, whether it would be reasonable for the Applicant to relocate to that area;
ii. The risk of harm is a relevant matter to have been taken into account for both of the limbs in (i) above.
iii. In considering risk of harm in the context of the second limb, however, it is not necessary (for satisfaction of that limb) for the risk of harm to be a "real risk" or the harm to be "significant harm".
iv. In deciding that it would be reasonable for the Applicant to relocate for the purposes of s 36(2A)(a), the Respondent's analysis reveals that the respondent erroneously proceeded on the basis that a risk of harm was only a relevant consideration if a "real risk" of "significant harm".
v. In this way, the Respondent failed properly to consider and take into account the risk of harm to the Applicant in the area proposed for relocation as a matter relevant to whether it would be reasonable for the Applicant to relocate to such area.
3. The Respondent fell into jurisdictional error by construing and applying s 36(2B)(a) as if the only type of harm relevant to the reasonableness of relocation was “significant harm”.
Particulars
The Applicant repeats the particulars of Ground 2 above.
Mr Byrne of counsel on behalf of the applicant skilfully endeavoured to identify why on an impressionistic level, proposed grounds 1, 2 and 3 were reasonably arguable. Mr Byrne provided detailed submissions in support of the arguability of the three proposed grounds.
Proposed ground 1
In relation to proposed ground 1, Mr Byrne submitted that the Authority had erred by applying a relative test rather than an objective test in determining whether there was a real risk of the applicant suffering significant harm under s 36(2B)(a) of the Act. Mr Byrne in his written submissions and orally, sought to emphasise language that he submitted suggested that the Authority had applied a relative test and characterised language as being relative rather than objective language by the Authority. The Authority’s reasons as summarised above do not support the contention that there was a relative test applied rather than an objective test in determining whether there was a real risk. No arguable case of jurisdictional error sufficient to warrant an extension of time is identified by proposed ground 1.
Proposed grounds 2 and 3
In relation to proposed grounds 2 and 3, Mr Byrne of counsel submitted both orally and in his written submissions that the Authority had conflated the requirements in assessing whether there was a real risk the applicant would suffer significant harm in relation to complementary protection and relocation, and whether it was reasonable for the applicant to relocate to Mazar-e-Sharif or Kabul.
The Authority’s reasons are not to be read with a keen eye for error. The Authority’s reasons as a whole do not reflect any conflation or erroneous application of the correct tests. Further it was open to the Authority to take into account findings under the Refugees Convention in determining the application of the criteria for complementary protection. I am not satisfied that the alleged error in proposed ground 2 has sufficient merit to warrant an extension of time.
The alleged error argued in relation to proposed ground 3 was that the Authority had erred in considering the reasonableness of relocation as dependent upon there being significant harm. The Authority’s reasons reflect considering the personal circumstances of the applicant in relation to considering the reasonableness of relocation and taking into account the submissions that were advanced in that regard. I do not read the Authority’s reasons as supporting that the Authority erroneously treated significant harm as the only type of harm relevant to the reasonableness of relocation. I am not satisfied that there is a sufficiently arguable case on the merits in relation to proposed ground 3 to warrant an extension of time.
Conclusion
In the circumstances of the present case, where the applicant has not provided a satisfactory explanation for the delay and the proposed grounds in the application do not sufficiently disclose an arguable case on the merits to warrant an extension of time, the Court declines to extend time under s 477 of the Act.
Accordingly, the application for an extension of time under s 477 of the Act is dismissed.
I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of Judge Street
Date: 3 September 2018
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