FCS17 v Minister for Immigration
[2019] FCCA 1024
•20 March 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| FCS17 v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 1024 |
| Catchwords: MIGRATION – Immigration Assessment Authority – application for a Temporary Protection visa – whether the Authority had misconstrued or misapplied the statutory provisions – whether the Authority complied with its statutory obligations – whether the Authority had a meaningful engagement with the applicant’s claims and submissions – no jurisdictional error made out – amended application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.5H, 5J, 36, 473DD, 476 |
| Applicant: | FCS17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | ADG 475 of 2017 |
| Judgment of: | Judge Street |
| Hearing date: | 20 March 2019 |
| Date of Last Submission: | 20 March 2019 |
| Delivered at: | Adelaide |
| Delivered on: | 20 March 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr P Barnes |
| Solicitors for the Applicant: | Beena Rezaee Legal & Migration |
| Solicitors for the Respondents: | Ms S Nyabally Australian Government Solicitor |
ORDERS
The amended application is dismissed.
The applicant pay the first respondent’s costs fixed in the sum of SEVEN THOUSAND FOUR HUNDRED AND SIXTY SEVEN DOLLARS ($7467).
DATE OF ORDER: 20 March 2019
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT ADELAIDE |
ADG 475 of 2017
| FCS17 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
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 20 October 2017 affirming the decision of the delegate not to grant the applicant a Temporary 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 as an unauthorised maritime arrival on 21 February 2013. The applicant was found to be a Shia Hazara. The applicant claims that in 2012 Pashtun Kuchis attacked his village. The applicant claimed that his son was killed in 2014 from an attack from Pashtun Kuchis. The applicant fears harm by the Pashtun Kuchis linked to the Taliban, and the Taliban themselves and other Sunni insurgent groups, and due to his Hazara Shia race and religion and because he would be returning as a failed asylum seeker from the west.
On 13 January 2017, the delegate found the applicant failed to meet the criteria for the grant of a Temporary Protection visa.
On 18 January 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 an attached fact sheet and Practice Direction giving the applicant an opportunity to put on new information and submissions. The applicant did put on submissions and new information which were referred to in the Authority’s reasons and considered in accordance with the requirements of s 473DD of the Act insofar as concerning the information.
On 7 June 2017, the Authority wrote to the applicant raising with the applicant under s 5J(1)(c) of the Act whether it would be reasonable for the applicant to relocate to an area in the country where the applicant would not be at real risk, as well as referring to s 36(2B)(a) of the Act in that regard. The letter contained country information. The letter explained that it may be relevant in relation to whether or not there is a real chance the applicant would be seriously harmed by reason of his religion or ethnicity if he were to relocate to Kabul or Mazar-e-Sharif. The letter also drew attention to considering the issue of whether or not it would be reasonable for the applicant to relocate to Mazar-e-Sharif or Kabul.
The applicant provided submissions in response dated 21 June 2017 to the letter from the Authority, which expressly addressed relocation, in particular, Mazar-e-Sharif and advised country information in that regard and why it was contended that the applicant could not relocate. The Authority referred to those submissions and information and had regard to the same, as well as taking into account updated country information.
The Authority summarised the applicant’s claims and evidence. The Authority accepted that the applicant fears repercussions in his village on return and fears being killed by the Kuchis and Taliban in future attacks.
The Authority accepted that due to the applicant’s race the applicant would face a small but, nonetheless, real chance of being seriously harmed in fighting with the Pashtun Kuchis if he returned to live in his home village. The Authority, however, referred to the requirements of s 5J(1)(c) of the Act that requires the real chance of persecution to relate to all areas of a receiving country. The Authority was not satisfied that the threat of serious harm to the applicant arising from the Kuchi conflict and related matters extends beyond his localised region.
The Authority did not accept that the applicant will face a real chance of harm from Kuchis in Mazar-e-Sharif or from the Taliban in relation to the Kuchi-Hazara conflict, even taking into account that it may become known that he is a Hazara who comes from a particular village.
The Authority found that the chance the applicant would be targeted and harmed in Mazar-e-Sharif is remote and was not a real chance. The Authority did not accept the applicant would face harm from other villagers or his village elders in all areas of Afghanistan. The Authority found the applicant would not face a real chance of harm on this basis if he returned and lived in Mazar-e-Sharif.
The Authority referred to country information and was not satisfied that the chance of the applicant being harmed by attacks from the Islamic State reaches that of a real chance in Mazar-e-Sharif. The Authority found that the chance of the applicant being seriously harmed by Islamic State, the Taliban or any other anti-government elements (“AGEs”)/insurgent/extremist group in the reasonably foreseeable future in Mazar-e-Sharif for reasons of his race and religion is remote and therefore not real.
The Authority was not satisfied that the applicant would face discrimination from the government or authorities which would amount to serious harm, taking into account country information. The Authority found that any discrimination the applicant may face will be low level and infrequent and would not amount to serious harm.
The Authority took into account country information in relation to targeting by AGEs and found the applicant does not currently hold a profile connected to the government or international community, nor any proximity to persons who do. The Authority was not satisfied of the applicant’s Hazara Shia identity and/or his return from Australia would lead to him facing a real chance of harm for any actual or imputed association or connection with the government or international community, the west, imputed profile as a Christian or an infidel in Mazar-e-Sharif.
The Authority referred to the applicant’s concerns about the applicant’s mental state. The Authority was not satisfied that upon the applicant’s return the applicant’s psychological state will be such that he will not be able to subsist in Mazar-e-Sharif on account of his mental health problems or otherwise. The Authority was not satisfied there is a real chance the applicant’s mental health will deteriorate such that he will require treatment not available in Mazar-e-Sharif, or that he would otherwise suffer serious harm in connection with this.
The Authority referred to country information and was not satisfied on the evidence that the applicant will face a real chance of harm in Mazar-e-Sharif as a consequence of criminality. The Authority was satisfied there is no real chance of the applicant facing serious harm in accessing the Mazar-e-Sharif city.
The Authority referred to having considered the applicant’s personal circumstances and it was satisfied that it would be reasonable for the applicant to remain in Mazar-e-Sharif city where he will not face a real chance of serious harm. The Authority referred to having considered the applicant’s claims individually and cumulatively and was not satisfied the applicant’s fear of persecution is well founded.
The Authority found the applicant did not meet the definition of “refugee” in s 5H(1) of the Act and found the applicant failed to meet the criteria in s 36(2)(a) of the Act.
The Authority then turned to the issue of complementary protection which expressly referred to the requirements of s 36(2A) of the Act. The Authority referred to the finding in relation to there being a small but, nevertheless, real chance of being seriously harmed if the applicant returned to his home area.
The Authority then turned to the requirements of s 36(2B) of the Act, setting out the substance of the same. The Authority referred to the discrimination that the applicant may face on return and was satisfied that it would be a low level, it would not threaten the applicant’s capacity to access services, earn a livelihood or otherwise to subsist. The Authority was not satisfied the applicant would face any discrimination or other mistreatment arising from any specific circumstance or vulnerabilities that would lead the applicant to be subject to acts or omissions which would constitute significant harm, as defined in s 36(2A) and s 5 of the Act for the applicant upon return.
The Authority referred to the applicant’s mental health and was not satisfied that this would contribute to the applicant having a risk profile or that treatment for such condition will be intentionally procured, or any reason. The Authority was not satisfied these factors would lead the applicant to be arbitrarily deprived of his life, have the death penalty applied, or be tortured. The Authority was not satisfied that through any act or admission the applicant would be subject to intentionally inflicted pain or suffering, or severe pain and suffering such as to meet the definition of cruel or any inhuman treatment or punishment, or intentionally cause extreme humiliation. The Authority was not satisfied the applicant would, as a result of his mental health issues, be subject to acts or omissions which would constitute significant harm, as defined in s 36(2A) and s 5 of the Act, upon return.
The Authority referred to not being satisfied that the applicant will face a real chance of harm from Kuchis, their Taliban affiliates, his village elders or fellow villagers relating to the Kuchi-Hazara disputes in his home region, or from his disobedience in refusing to engage in the fighting, or from his profile as a Hazara for a particular village if he returned and resided in Mazar-e-Sharif.
The Authority referred to the real chance or real risk tests and it was not satisfied that the applicant faces a real risk of suffering significant harm if returned to and residing in Mazar-e-Sharif. The Authority referred to having found the applicant will not face a real chance of harm in Mazar-e-Sharif on account of his profile as a Hazara Shia male who left a particular village to avoid Kuchi-Hazara dispute and has lived outside of Afghanistan for several years, including in a western country, being Australia, where he sought asylum, or for any actual or imputed connection with or support for the Afghan government, western and international community or for any contrary imputed opposition to the Taliban, Islamic State or other AGEs, or any imputed profile as a Christian/infidel returning to influence others. The Authority referred to applying the same reasoning in relation to a real chance of a real risk and not being satisfied that the applicant faces a real risk and suffering significant harm in returning to, and residing in Mazar-e-Sharif.
The Authority found there is no real chance for the applicant suffering serious harm from violence targeted against him or from generalised violence or criminality in Mazar-e-Sharif. The Authority found there is no real risk of the applicant suffering serious harm on the basis of generalised violence or criminality on return to and residing in Mazar-e-Sharif. The Authority was not satisfied the applicant faced a real risk of significant harm for any individual and cumulative reasons taking into account all the circumstances upon his return to Mazar-e-Sharif.
The Authority then referred to having regard to all of the applicant’s personal circumstances and having considered whether it was reasonable for the applicant to relocate to Mazar-e-Sharif. The Authority referred to the applicant’s representatives having provided submissions as to why the relocation would be unreasonable in the applicant’s circumstances. The Authority descended into identifying that these included that Mazar-e-Sharif is not safe, it does not offer durable protection, and the applicant’s adverse profile with his village elders and Kuchis will, in future, deter people even within the Hazara population from assisting him. The Authority referred to the issues also raised in respect of the living standards and prospects of employment.
The Authority referred to country information and, whilst accepting the applicant would face challenges, did not accept the applicant will become destitute or that the challenges would make relocation unreasonable.
The Authority referred to the control in Mazar-e-Sharif and its political and economic climate, as well as the large Hazara community, and Mazar-e-Sharif being one of the biggest commercial centres and having more stable security and greater economic opportunities being conducive to the applicant finding employment. The Authority expressly referred to the applicant having had experience in farming as well as a welder in the construction industry. The Authority referred to the applicant being able-bodied and of working age. The Authority was not satisfied the applicant would not be able to obtain employment or shelter or access to basic services. The Authority referred to the applicant facing some difficulties with his mental health, but that this would not prevent the applicant from obtaining employment in Mazar-e-Sharif, or that he has any other vulnerabilities which is to act as a barrier to him earning a livelihood.
The Authority was satisfied the applicant is resourceful and adaptable to unfamiliar environments, including urban settings. The Authority referred to having considered the applicant’s concerns about people being deterred from helping him, but it was not satisfied and did not accept that the elders and villagers will affect his livelihood or access to community support. The Authority was satisfied the applicant would be able to access the necessary infrastructure and essential services to sustain himself to meet the basic necessities of life. The Authority was satisfied that over time the applicant will be able to integrate into the local community.
The Authority expressly referred to having considered the applicant’s family still remaining in the home village and that he is financially responsible for them. The Authority found that there is no information indicating the applicant has not been able to provide for them previously and found the applicant is equipped to obtain work upon return. The Authority acknowledged the impact of separation upon the family in short to medium term being difficult, but did not accept it would be unreasonable. The Authority found the applicant could establish himself in Mazar-e-Sharif and once settled he and his family could discuss the possibility of and/or make arrangements for his family to join him.
The Authority referred to the submissions about concerns in respect of the durable safety in Mazar-e-Sharif and referred to country information in respect of particular incidents being infrequent and found the applicant would not face a real chance or a real risk of serious or significant harm on the basis of targeted harm or generalised violence or criminality, either within the city or whilst accessing it upon returning. The Authority was satisfied that relocation to Mazar-e-Sharif was reasonable.
The Authority referred to having considered the applicant’s personal circumstances and it was satisfied that it is reasonable for the applicant to remain in Mazar-e-Sharif and that he would be able to secure shelter, employment and services upon return, even in the absence of an initial or other familial support network.
The Authority found there are no substantial grounds for believing that, as a necessary and foreseeably consequence of the applicant being returned to Afghanistan from Australia, there is a real risk that the applicant will suffer significant harm. The Authority found the applicant did not meet the criteria in section 36(2)(aa) of the Act and affirmed the decision under review.
The grounds
The grounds in the amended application are as follows:
Ground 1
The Immigration Assessment Authority (“the IAA”) committed jurisdictional error in misdirecting itself or asking the wrong question in considering whether or not it would be reasonable for the Applicant to relocate to Kabul.
Particulars
1. Having found that the Applicant “would face a small but nevertheless real chance of being seriously harmed if he returned and lived in his home area” [49], the IAA was then required to consider whether it would be reasonable for the Applicant to relocate to an area of the country where there would not be a real risk that he would suffer significant harm, pursuant to Section 36(2B) of the Act.
2. The correct application of Section 36(2B) requires the IAA to take account of what is reasonable having regard to all the circumstances of the Applicant and the impact on him in relocating: SZATV v MIAC (2007) 233 CLR 18.
3. The circumstances which must be considered include any harm which might befall the Applicant, including but not limited to “significant harm”: MZYQU v Minister for Immigration and Citizenship [2012] FCA 1032 at [61].
4. In assessing whether it was reasonable for the Applicant to relocate to Mazar-e-Sharif, the IAA confined its consideration to whether or not there was a real risk that he would suffer “significant” harm: [51] – [56] & [64].
5. “Harm”, in this context, includes the potential difficulties identified by the Applicant’s representative in the submissions presented to the IAA, including the fact that he would not be eligible for re-integration benefits which would assist in his re-establishment in the country (CB, 14]. It also includes societal discrimination hampering the Applicant’s ability to re-integrate.
Ground 2
The IAA further erred in that it failed to conduct a detailed consideration of the practical circumstances the Applicant would face if returned to Afghanistan
Particulars
1. In assessing, per SZATV, the practicalities of relocation to a particular place within the country of origin, the IAA was required to conduct a “fact-intensive assessment”: MZANX v MIBP [2017] FCA 307.
2. In this case, the IAA conducted a “broad brush” assessment, without any detailed consideration of the practicalities facing the Applicant if he returned.
3. This is apparent from the language of the Decision, which suggested that the onus was on the Applicant to demonstrate to the satisfaction of the IAA that he would not be able to obtain employment or shelter or access basic services: [62].
4. The IAA was required to, but failed to, conduct a detailed analysis of the situation on the ground which would face the Applicant in the event of his return, including:
a) What kind of employment was available, and in what industries. The general reference to the Applicant’s experience as a welder in the construction industry [62] is insufficient, as it entails assumption upon assumption as to the opportunities and whether the Applicant’s experience and background would enable him to seek out and take advantage of such opportunities.
b) What, if any, specific areas existed in Mazar-e-Sharif, where accommodation and relevant services would be available to him that would allow him to meet his basic needs.
c) Whether the Applicant would be able to sustain himself long-term in Kabul without either family or tribal support having regard to the danger the IAA accepted he would face by travelling to his home area.
d) Whether, having regard to the views of Professor William Maley, it was reasonable to consider that the Applicant could “reintegrate” into the Afghan community in Kabul and in particular within the Hazara community.
Mr Barnes of counsel on behalf of the applicant confirmed that it is only grounds 1 and 2 that are pressed and that the grounds 3 to 5 have been abandoned.
Ground 1
In relation to ground 1, Mr Barnes of counsel submitted that the Authority had confined itself erroneously to a consideration of serious harm or significant harm in determining whether or not it was reasonable for the applicant to relocate to Mazar-e-Sharif and it therefore engaged in jurisdictional error. Mr Barnes in that regard took the Court to the reasoning of the Authority in relation to the analysis under complementary protection and, in particular, the references to serious harm or significant harm in that reasoning. Mr Barnes submitted that in those circumstances the reference in paragraph 57 to reasonableness and relocation was one that should be read as affected by jurisdictional error by confining the consideration to significant harm or serious harm. Mr Barnes also placed weight upon the reasoning of the Authority in the further analysis and, in particular, at paragraph 64, and submitted that the concluding sentence in paragraph 64 supported the Authority having engaged in the error contended in ground 1.
The Authority’s reasons are not to be read with a keen eye for error. The terms of s 36(2)(aa) of the Act require, in respect of complementary protection, the Authority made dispositive findings on the issue thereby raised. There is no basis in the circumstances of the present case to find that the Authority had misconstrued or misapplied the statutory provisions in determining whether it was reasonable for the applicant to relocate. I do not accept in respect of the reasonableness of relocation that the Authority confined itself to significant or serious harm as advanced on behalf of the applicant.
The reasoning in paragraph 57 makes express reference to having considered the applicant’s personal circumstances in determining whether it is reasonable to relocate and does not reflect any error of the kind alleged in ground 1. I do not accept on a fair reading of the Authority’s reasons as a whole that paragraph 64 and the last sentence gives rise to the error of the kind alleged by Mr Barnes. Accordingly, no jurisdictional error as alleged in ground 1 is made out.
Ground 2
In relation to ground 2, Mr Barnes submitted that there had not been a real and genuine analysis of the applicant’s claims in the submissions in relation to the reasonableness of relocation and expressly referred to issues of employment, accommodation, services, the ability for the applicant to sustain himself and community integration.
On the face of the Authority’s reasons, the Authority had a meaningful engagement with the applicant’s claims and submissions. The Authority’s reasons, as summarised above, addressed the issues of employment, subsistence, as well as integration into the community. The Authority’s reasons reflect a real and meaningful consideration of the applicant’s personal circumstances in determining whether it was reasonable for the applicant to relocate to Mazar-e-Sharif.
The Authority’s reasons, as summarised above, make clear that the Authority took into account and had a meaningful engagement with the submissions advanced on behalf of the applicant in respect of reasonableness of relocation. No jurisdictional error as alleged in ground is 2 is made out.
Accordingly, the amended application is dismissed.
I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Judge Street
Date: 17 April 2019
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