EYG18 v Minister for Immigration

[2020] FCCA 725

FEDERAL CIRCUIT COURT OF AUSTRALIA

EYG18 v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 725

Catchwords:
MIGRATION – Protection Visa – whether Immigration Assessment authority’s decision affected by jurisdictional error – where no error established in Immigration Assessment authority’s decision – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5J, 395

Cases cited:

ESD17 v Minister for Immigration & Border Protection [2018] FCA 1716

Applicant: EYG18

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: PEG 498 of 2018

Judgment of: Judge Vasta

Hearing date: 12 February 2020

Date of Last Submission: 12 February 2020

Delivered at: Perth

Delivered on: 12 February 2020

REPRESENTATION

Counsel for the Applicant: Mr F. Robertson

Solicitors for the Applicant: AUM Legal

Solicitors for the First Respondent: Australian Government Solicitor

ORDERS

1. That the name of the First Respondent be amended to read “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.

2. That the Application filed 21 September 2018 and amended on 16 January 2019 is dismissed.

3. That the Applicant pay the costs of the First Respondent fixed in the sum of $7,467.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 498 of 2018

EYG18

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

(Ex Tempore)

1. On 20 August 2018, the Immigration Assessment Authority (“the IAA”) affirmed a decision not to grant the Applicant, EYG18, a Protection Visa.  On 21 September 2018, the Applicant filed an application in this Court asking this Court to review that decision.

2. The background to this matter is that the Applicant has claimed he is Hazara Shia born in 1997 in Dalil Khan in Baba village, Jaghori District, Ghazni Province, Afghanistan.  He said that his father fought against the Taliban as a soldier for Hezb-e Whadat and was a friend of a famous military commander, AG. That military commander, was also the Applicant’s maternal grandfather’s brother.

3. The Applicant said he left Afghanistan as a young child of two or three because of the security situation in Afghanistan.  He said his father fled first then asked the family to follow him.  The Applicant said he did not ever return to live in Afghanistan and has never had an Afghan identity document, and he has lived unlawfully in Pakistan ever since. 

4. He said that in 2005 his father went back to Afghanistan to become a policeman in Jaghori. He said that he had been told that his father was once stopped by the Taliban while travelling in a taxi and he was searched and questioned, was asked about where he came from and what his job was, and that his father lied in his responses. He said that someone had informed on his father as they already knew his real name, and asked if he was a person known as TH. He said his father answered no, and because he was carrying medication and they did not realise who he actually was, they thought he was a sick, unimportant person and let him go.

5. When the father came to visit the family in Pakistan, the mother begged the father not to go back again but he insisted saying it was his duty to serve Afghanistan, and he returned to his work.  The Applicant said that eventually his father decided he would move permanently and join the family, but before he did, he went missing.

6. The Applicant’s uncle travelled to Afghanistan and the Applicant says the uncle discovered that the father had been travelling from Jaghori to Kabul in a private taxi. The car was stopped by the Taliban and the father had argued with the Taliban, and they injured him and detained him with another man. A comment was made that these two were valuable to the Taliban. The Applicant said that the family never heard from his father again.

7. The Applicant fears returning to Afghanistan.  He fears he will be harmed by the Taliban due to his association with his father who was an enemy of the Taliban, and because he is a Hazara and Shia, and a western returnee who lived in a foreign country most of his life. 

8. He also claimed he is not very religious anymore.  He does not pray or fast, and when the Afghan people realise he is not religious, they will not provide the support he needs to live there.

9. He said he suffers from mental health issues and he will not be able to access the treatment he needs.

10. He said that he left Afghanistan when he was young and he would not be familiar with the country, the local culture or customs, and he will not have any family support.

11. The IAA looked at all of these claims in a very thorough manner.  The IAA was concerned about the stories that the Applicant had recounted about the father because they were second, third and even fourth-hand accounts. The IAA doubted that anyone in Afghanistan would realise the connection that the Applicant had to Hezb-e Whadat, given the effluxion of time, the fact that the great uncle, AG, had actually died before the Applicant was born; the fact that the father’s association with Hezb-e Whadat finished in 1992, and that there was some form of peace that had been met in the late nineties between the Taliban and Hezb-e Whadat.  The IAA did not think, when one considered all of those matters, that the Applicant had any real risk because of those family connections.

12. As far as the allegation that the Taliban had kidnapped the father, the IAA noted differences that the Applicant had in this particular tale.  The Applicant changed his tale from his entry interview and his SHEV statement.  The Applicant explained the difference in his interview in this way: he believed some circumstances when he came here, but having spoken to his mother since, who had then corrected him as to the details, he was able to give the correct details. 

13. The IAA did not accept this explanation as the Applicant himself had gone into Afghanistan with his mother and other relatives on a search for the father, and had eventually had some form of farewell ceremony when it was realised that the father would have been deceased.  

14. The IAA was of the view that the Applicant, having gone there, would, through the search and then the farewell, have understood well and truly the circumstances that were being alleged as to the fate of his father, and there would not be any need for him to check with his mother or for his mother give a different version.

15. The IAA said at paragraph 23 of their reasons:

    I am not satisfied the Taliban or any anti-government group would have any adverse interest in the applicant stemming from his father’s association with Hezb-e Wahdat or the police and the family’s association with AG, nor for any other reason.  I do not accept the applicant faces a real chance of being harmed by the Taliban or anyone for these reasons in Jaghori or anywhere in Afghanistan.

16. The IAA then looked at whether the Taliban or Daesh or any other insurgents or anti-government elements would harm the Applicant on the basis of his race and religion as a Hazara Shia returnee from the West. 

17. The IAA had extensive use of country information and looked at the most recent reports as to the fate of Shias and Shia Hazaras in Afghanistan.  Upon that analysis, the IAA came to the conclusion that the Applicant’s home area of Jaghori was a safe area as the majority of the populace were Shias, and that there was a sizeable, if not also majority, Hazara population there.  There had been very few incidents of any form of targeting of religious groups in that area. 

18. The IAA noted that the Taliban is still the main insurgent group active, and, when looking at the last attack on Hazaras in Afghanistan, noted that the Taliban itself condemned the attack.  The IAA spoke as to whether incidents that are recent were the work of insurgents or criminal gangs and noted that there was scarce evidence that the motivations of the incidents were ethnic or religious targeting. The IAA noted that the most recent incidents arose from disputes over resources. 

19. Having looked at all of this information, the IAA said this in paragraph 32:

    … Even taking into account ISKP’s attempts to stoke sectarian conflict, and accepting there have been clashes between Hazaras and other ethnic groups from time to time, I am not satisfied that sectarianism has taken or is likely to take hold at the community level such that incidents will occur with such frequency and/or severity that there is a real chance the applicant would suffer harm as a consequence of societal violence in the reasonably foreseeable future.  I am satisfied the applicant does not face a real chance of harm from groups or persons in the community/ at the societal level.

20. At paragraph 33:

    I do not accept, that even if the applicant leaves Jaghori and travels within other parts of the Hazarajat for any purposes that he faces real chance of harm from the Taliban, ISKP, other Sunni extremists, AGEs, other armed groups or Pashtuns in Jaghori district, nor in the broader Hazarajat on the basis of his racial and/or Shia religious profile.

21. The IAA then considered what the Applicant said was his non-adherence to his religion or any other branch of Islam and whether he would face a risk of harm on that basis or whether he would be treated as an apostate.

22. The IAA considered all the various references to the Applicant’s faith. The IAA noted that the Applicant clearly indicated in his SHEV application, found at page 79 of the Court Book, that he identified as a Shia Muslim, although he did not consider himself to be very religious, stating:

    I am not very religious any more. I usually do not pray and fast, and I occasionally drink beer.  People in Afghanistan are very religious, including the Hazara community.  If they realise that I’m not very religious any more then they will not provide the support I need to live there.

23. The IAA noted that when discussing religion at the SHEV interview, the Applicant stated that he had changed in Australia.  He had forgotten how to pray and had forgotten everything about “the religious thing”.  The IAA noted in the post-interview written statement, found at page 178 of the Court Book, the Applicant said:

    .. I don’t think that it will be easy for me to find support and integrate into Afghanistan because I’m not religious any more.  I drink and eat pork and I don’t pray and don’t follow the religious teachings.  I think that people will look down on me and not be friends with me if I do not act like a strong Muslim…

24. Also in that same submission, the representative of the Applicant stated that the Applicant drinks, eats pork and does not pray nor actively practices his religion.  This would be frowned upon by local Afghans who are mostly conservative Muslims.

25. The IAA rejected any assertion that the Applicant was an apostate, that being someone who had abandoned their faith.  The IAA noted that throughout the primary process, the Applicant’s fear of being harmed as a Hazara Shia was a constant theme, and references to his religion were littered throughout his application and statements.  The IAA said that they considered the Applicant’s statement that he does not follow the religious teachings, but noted that that was a vague reference. 

26. The Applicant did not indicate which aspects of the teaching he does not follow, apart from drinking alcohol and eating pork and not praying. The IAA said, that given the breadth of Islamic principles which cover the basic tenets of various aspects of humanity, the IAA was not convinced that the Applicant does not follow any religious teachings, even if he does not do so consciously. The IAA said that they accepted that the Applicant does not actively practice Shiism and does not consider himself religious, but the claims put to the Delegate and in the Applicant’s application do not indicate that he has actually abandoned his faith.

27. As an example, the IAA noted the submission of the Applicant was that the Applicant could be targeted travelling on the road or going to a Shia mosque.  But this is to be contrasted with his claim that he feared how people would perceive and treat him if he does not act like a strong Muslim, and that he does not actively practice his religion.

28. The IAA said that they considered all of that information carefully and took into account the nuances in the statements from the point of application through the interview, the post-interview statement and the submissions, and came to the conclusion that the Applicant had not come to a point that he had abandoned his religion. 

29. The IAA said that the Applicant had not indicated that he does not believe in any more, or that he has converted to, or explored, any other religion. He did not indicate that he is an atheist or a secularist, or any other type of convert. He still identifies as a Shia but does not practice in the sense that he does not pray, does not fast, does not abstain from alcohol and pork, and does not make an effort to upkeep the practice of his faith.

30. The IAA accepted that the Applicant fears that if he does not conform to a strict religious practice, he will face social ramifications such as difficulty integrating and obtaining support from members in the community, and that he will be perceived as Westernised.  The IAA said that there was nothing to suggest that the Applicant’s past and current practice, or current non-practice, of Islamic rituals is known by anyone in Afghanistan, and there was no credible evidence to suggest the Applicant’s actions or inactions in Australia have come to the attention of Afghan authorities or to anyone else in Afghanistan.

31. What the IAA then did was look at the fact that the Applicant says that he now drinks alcohol and consumes pork, and I will come back to those aspects.  However, the IAA found that the Applicant could modify his behaviour to avoid any chance of harm arising from the consumption of alcohol and pork.  Having come to those conclusions, the IAA did not consider that the Applicant would come to harm because of these matters.

32. The IAA then looked at what would occur as far as Hazara returnees from Western countries were concerned.  Again, there was great reliance placed upon country information, and a conclusion was made that there would not be any harm because of his returning as a failed asylum seeker from a Western country.

33. The IAA looked at what provision the Applicant would have for his mental health and found that he would have some access to medical assistance there, and the IAA was not convinced that the Applicant’s capacity to subsist would be threatened or that there was a real chance that his mental health would deteriorate such that it would lead to his facing harm and that he would not be able to access any treatment.

34. The IAA was not satisfied on a cumulative basis that the Applicant faced a real chance of harm in his home region of Jaghori and its surrounds on account of his father’s roles with the Hezb-e Whadat or police, his family connections to AG and Hezb-e Whadat, his Hazara race, his Shia identity, his non-adherence to the practice of Islam, because he has spent a significant time in an overseas country and would be returning having sought asylum in the West, or any other aspect of his cumulative profile.

35. The IAA noted that he would probably be returned to Kabul Airport and that the roads were somewhat dangerous, but, having a look at the country information, found that there was no such danger that it would amount to a real risk of his travelling on the road between Kabul and his home area. The IAA also noted that the Applicant could return by flying to Bamiyan and then driving on very safe roads to his home province, with a weekly flight from Kabul to Bamiyan that costs approximately US$100.00.

36. Having come to all of those conclusions, the IAA found that the Applicant had not satisfied the criteria of being a refugee. 

37. The IAA then looked the complementary protection criteria and again assessed that aspect, especially in view of the Applicant’s mental health, but came to the conclusion that there was no real risk of the Applicant facing significant harm in his home area when returning there. 

38. For those reasons, the IAA affirmed the decision.

39. The application has one ground only and that is:

    Ground 1

    The IAA, at [40], asked itself the wrong question and in doing so diverted itself from the question of whether the applicant would face a real risk of persecution on a Convention ground by erroneously focusing instead on whether the harm question might have been avoided and in doing so fell into jurisdictional error. 

40. The starting point for this ground is to look at paragraph 40, and I will read it into the record.  Paragraph 40 reads as follows:

    I accept that in Australia, the applicant drinks alcohol and eats pork. However he was raised in a Shia Afghan family in Pakistan, and I am satisfied that from his upbringing and because he made mention of how he does it now, he knows that alcohol and pork consumption are not permitted in Islam and nor permitted in Afghanistan.  Given his upbringing and the environment and culture he would be returning to where he knows such things are haram, and would not in any event be readily available, I am satisfied he would not consume these items upon return.  I accept that his avoidance would be out of a fear of persecution, However, the applicant does not claim he has an addiction of any kind associated with this consumption, or that drinking alcohol or eating pork is a fundamental characteristic of his identity, that he does this as a type of religious (or anti-religious) expression or that it is important to him in any way.  Alcohol and pork consumption is not an innate or immutable characteristic, or a fundamental characteristic of the applicant’s identity, I am satisfied it would be reasonable for the applicant to modify his behaviour in this way and avoid a real chance of harm arising from the consumption of alcohol and pork.

41. The Applicant has submitted that one must look at the provisions of s.5J of the Migration Act 1958 (Cth) (“the Act”). Section 5J of the Act, which I will have reproduced in the reasons, if it is that they need to be transcribed, says this:

    Meaning of well-founded fear of persecution

    (1) For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:

    (a)    The person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion;  and

    (b)    there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a);  and

    (c)     the real chance of persecution relates to all areas of a receiving country.

42. Obviously, s.5J(1)(a) is a subjective assessment, whereas (b) and (c) are objective assessments. Section 5J(3) says that:

    (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…

43. Section 5J(3)(i) is the applicable provision in this matter, s.5J(3)(i) states:

    (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;…

44. The Applicant submits that Rangiah J in ESD17 v Minister for Immigration & Border Protection [2018] FCA 1716 has said that the proper way of assessment of s.5J is to look at s.5J(1) of the Act first. If there is a provisional satisfaction with regard to that section, then one looks at ss.5J(2), (3), (4), (5) and (6) of the Act and it is then that there is a decision as to whether the provisional conclusion that there is a well-founded fear of persecution is able to be sustained or not. If this is the proper approach, the Applicant says, then that has not been followed by the IAA.

1. I pause at this stage to say that whilst Rangiah J has said this, there is no Full Court authority as to how this should be assessed, and in my own experience, I have seen other Courts simply look at all of the aspects in s.5J of the Act to come to a conclusion as to whether there is a well-founded fear, rather than coming to provisional decisions first and then looking at whether the exceptions apply. Be that as it may, the only Federal Court authority that I have been referred to is this one.

2. If one looks at that, it is clear that the IAA has not made any form of provisional conclusion as to whether there was persecution that was well-founded. Paragraph 40 shows that the IAA has concluded that there would be persecution but does not talk about whether it is well-founded, but, according to the Applicant, then embarks upon a truncated analysis of s.5J(3) of the Act.

3. The Applicant says that the IAA then only looks a subparagraphs (a) and (b) and ignores (c) and, in doing so, therefore commits a jurisdictional error. The Applicant also submits that the IAA has combined the two tests at s.5J(1) and s.5J(3) of the Act and this was not allowed.

4. It seems to me that one has to look at again, very closely, what the IAA has said in paragraph 40. The IAA has said that there was a fear of persecution, but as s.5J(1)(a) of the Act says, this fear of persecution must be because of “reasons of race, religion, nationality, membership of a particular social group or political opinion”.  It does not seem to me that the Applicant was saying that the persecution or the fear of persecution was for any of those reasons; or, that (objectively), the IAA had found the persecution would be for any of those reasons. 

5. The submission made to me is that the Applicant’s decision that he would consume pork and drink alcohol was part of his religious beliefs.  I do not accept that.  I am of the view that a decision simply to not abide by a religious tenet does not, without anything else, allow something to be given the status of being a religious view.  As the IAA actually said in paragraph 40, the Applicant does not claim that he does this as a “type of religious (or anti-religious) expression or that it is important to him in any way”. On those findings of fact, the Applicant could not satisfy s.5J(1) of the Act in any event.

6. The Minister submits that s.5J(3) was looked at, and it was looked at as a whole. The Minister makes this submission because the way in which the IAA dealt with this matter, in paragraph 40, was to say that the Applicant’s eating of pork and drinking of alcohol would not conflict with the characteristic that was fundamental to his identity or conscience if he did not eat pork or drink alcohol; it would not be concealing any innate or immutable characteristic of him or limiting either of those matters. It was not altering the Applicant’s religious belief. Those were findings that were made in paragraph 40.

7. The Minister submits, and there is much force in this, that even if the test enunciated by Rangiah J is correct and the IAA has not followed that test, that there is no materiality in such an error because it could not, in any way, have changed the conclusion; that is, that if one looks at s.5J(3) of the Act, the IAA has said indirectly that that subsection has not been fulfilled, and has, when one does an analysis, specifically looked at ss.5J(3), (a), (b) and (c) of the Act.

8. I agree with that submission and find that as far as this aspect is concerned, there has been no jurisdictional error.  However, the submissions of the Applicant went further than that and may be seen to have gone somewhat further than the ground of appeal that was raised.  If it were that it had gone further, I certainly would have given leave for this argument to have been made anyway.

9. The submission is that in paragraph 41, the IAA committed the same error; that is:

   The applicant does not claim he would publicly or actively denounce or speak out against Islam, its teachings and traditions, that he would denounce or speak out against Afghan institutions (which I note are predicated on Islamic principles), nor encourage others to leave Islam, or that he would commit any sort of blasphemy.  I am not satisfied that the applicant would seek to publicise that he has not been actively practising Islam or that he would be outspoken about religion or that he would act in a manner that would attract adverse attention should he return to Afghanistan.  I have found the applicant still identifies as a Shia and I note in his application he mentioned going to mosque if he returned.  I accept he would not be dedicated in his practice upon return and would not seek to attend major events in the cities, but I do not accept he would not participate in certain Shia Islamic practices if he returned to Afghanistan.

10. The submission was that the IAA did not ask itself the question as to whether this would be because he feared persecution. The submission is that, whilst the IAA has said that the Applicant has not claimed that he would do certain things, it has not asked itself the question, “is the Applicant not doing these things because he fears persecution?” It seems to me that one has to look at whether that aspect actually arose upon this application.

11. The Applicant pointed to the principles in s.395 of the Act which was the precursor that caused s.5J of the Act to be enacted. Unlike the eating of pork and the drinking of alcohol, which the Applicant has said he has already done and that is his behaviour in Australia, the Applicant in Australia has done none of those things that the IAA has listed in paragraph 41.

12. There has been no suggestion that he has publicly or actively denounced or spoken out against Islam, denounced Afghan institutions, encouraged others to leave Islam, committed any form of blasphemy, publicised that he is not actively practising Islam or that he would be outspoken about religion. There is nothing to suggest that this has happened, and, so therefore, there can be no cause for the IAA to consider why the Applicant would do something in Afghanistan that he has not done in Australia.

13. That is why there is quite a difference between the way in which the IAA has handled the Applicant’s drinking of alcohol and eating of pork, as against the matters that are in paragraph 41.

14. Because that aspect has not arisen, nor is there reason to think that the Applicant would suddenly, as it were, change his behaviour as to how he had been acting in Australia, one does not have to think of reasons why it is that he would act in this way, if it is that it has not been in his nature to act in this way in the past. Therefore, I am of the view that this question did not arise and there was no reason for the IAA to ask that question.

15. I do not find, therefore, that there has been any jurisdictional error that is illustrated in what is contained in paragraph 41. 

16. As these are the only matters that the Court has been asked to look at, I do not find that there has been any jurisdictional error illustrated by either of these matters. 

17. I therefore dismiss the application with costs fixed in the sum of $7,467.00.

I certify that the preceding sixty-one (61) paragraphs are a true copy of the reasons for judgment of Judge Vasta

Date:  1 April 2020