FEDERAL CIRCUIT COURT OF AUSTRALIA
| FCW18 v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 1515 |
| Catchwords: MIGRATION – Safe Haven Enterprise (subclass 790) visa – decision of the Immigration Assessment Authority – whether the IAA made findings without evidence – jurisdictional error established – writs issued. |
| Legislation: Migration Act 1958 (Cth), pt.7AA, div.3, ss.5, 36, 46A, 65, 473CB, 473DA, 473DC, 473DD, 473GA, 473GB |
| Applicant: | FCW18 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | PEG 509 of 2018 |
| Judgment of: | Judge Kendall |
| Hearing date: | 25 March 2020 |
| Date of Last Submission: | 22 April 2020 |
| Delivered at: | Perth |
| Delivered on: | 11 June 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr R Saul-Jahnke |
| Solicitors for the Applicant: | Estrin Saul Lawyers |
| Counsel for the First Respondent: | Ms E Tattersall |
| Second Respondent: | Submitting appearance, save as to costs |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
A writ of certiorari issue quashing the decision of the second respondent dated 4 September 2018.
A writ of mandamus issue directed to the second respondent requiring it to determine the applicant’s application according to law.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 509 of 2018
| FCW18 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Background
The applicant is citizen of Afghanistan (Court Book (“CB”) 3). On 10 May 2013, he arrived in Australia as an unauthorised maritime arrival (CB 80). At the time of his arrival, the applicant was a minor.
On 27 July 2016, the applicant was notified that the first respondent (the “Minister”) had exercised the power under s.46A(2) of the Migration Act 1958 (Cth) (the “Act”). The applicant was invited to apply for a Safe Haven Enterprise (subclass 790) visa (the “visa”) (CB 18-19).
On 22 March 2017, the applicant applied for the visa with the assistance of his migration agent (CB 20-97).
The applicant’s protection claims were detailed in a statutory declaration. In summary, the applicant claimed as follows: (CB 86-87):
23. If forced to return to Afghanistan, I fear I will be harmed / mistreated for reasons of my:
a. my ethnicity (Hazara);
b. my religion (as an imputed Shia-Muslim and as an Agnostic);
c. my political opinion (as I would be imputed with an anti-Taliban / ISIS or pro-Western political opinion); and/ or
d. my membership to a particular social group (namely, failed Afghan asylum seekers in Afghanistan).
24. I fear I will face harm/ mistreatment because I no longer practice the Shi a religion. Since arriving in Australia, I…
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Details
- Case
- [2020] FCCA 1515
- Decision Date
CaseChat Overview and Summary
In FCW18 v Minister for Immigration, the applicant sought judicial review of a decision made by the Immigration Assessment Authority (IAA) concerning their eligibility for a Safe Haven Enterprise (subclass 790) visa. The core of the dispute revolved around whether the IAA had made findings of fact without any supporting evidence, thereby committing a jurisdictional error. The matter was heard before Judge Kendall in the Federal Circuit Court of Australia.
The legal issues before the court were whether the IAA's findings, particularly concerning the risks faced by the applicant upon return to Kabul, were based on evidence. Specifically, the court was required to determine if the IAA had erred in concluding that the applicant would not face a real chance of harm due to perceived lapsed or non-observant practice of Islam, or as a returnee from a western country, within the Hazara community in Kabul.
Judge Kendall found that the IAA had made findings without evidence. The IAA's decision noted a "real chance" the applicant might be perceived as a non-observant Muslim, but then dismissed this as a basis for harm, relying on general statements about the Hazara community's favourable outlook towards western countries and migration. However, the IAA failed to adequately engage with or explain why specific evidence suggesting harm to returnees perceived as "Westernized outsiders" or lapsed in their religious practices was not determinative. The court applied the principle that findings of fact must be supported by evidence, and that a failure to do so constitutes jurisdictional error.
The court issued writs of certiorari and mandamus. Certiorari was issued to quash the IAA's decision, and mandamus was issued directing the IAA to reconsider the application according to law.
The legal issues before the court were whether the IAA's findings, particularly concerning the risks faced by the applicant upon return to Kabul, were based on evidence. Specifically, the court was required to determine if the IAA had erred in concluding that the applicant would not face a real chance of harm due to perceived lapsed or non-observant practice of Islam, or as a returnee from a western country, within the Hazara community in Kabul.
Judge Kendall found that the IAA had made findings without evidence. The IAA's decision noted a "real chance" the applicant might be perceived as a non-observant Muslim, but then dismissed this as a basis for harm, relying on general statements about the Hazara community's favourable outlook towards western countries and migration. However, the IAA failed to adequately engage with or explain why specific evidence suggesting harm to returnees perceived as "Westernized outsiders" or lapsed in their religious practices was not determinative. The court applied the principle that findings of fact must be supported by evidence, and that a failure to do so constitutes jurisdictional error.
The court issued writs of certiorari and mandamus. Certiorari was issued to quash the IAA's decision, and mandamus was issued directing the IAA to reconsider the application according to law.
Orders
Orders of the court
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Background
Background to the litigation
The 2016 DFAT Report provides:Background Information…2.2 While demographic data for Afghanistan is unreliable, it is estimated that around three million Hazaras live in Afghanistan-approximately nine per cent of the population and the third largest ethnic group. Sizeable Hazara communities are also found in Pakistan, Iran, the Gulf states, Australia, Europe and the US. Because of the importance of family and ethnic community networks in Afghan life, the presence of Hazara diasporas abroad often acts as a significant factor in the decision of Hazaras to leave Afghanistan, and in their choice of destination.…Areas with large Hazara populations…2.7 Kabul is the largest city in Afghanistan, and the nation’s capital. Data on the population of Kabul is unreliable, including information on the city’s ethnic composition. However, there are credible reports that the current population of the city and surrounding area is more than four million, around 13 per cent of the estimated population of Afghanistan, having grown rapidly over the last decade. Estimates of the Hazara population in Kabul vary between around 1.6 million to two million, or 40-50 per cent of Kabul’s population. This would make Hazaras the largest ethnic group in Kabul, alongside significant numbers of Tajiks, Pashtuns and minority ethnic groups. Most Hazaras in Kabul live in the west of the city, including many who live in informal and illegal settlements.…Education3.24 Access to education in Afghanistan has improved greatly since 2001, particularly for girls. Traditionally, many Hazaras have placed a high value on education, including for girls and women. Almost 90 per cent of Hazara children receive education and are generally encouraged to consider further education options where family circumstances allow. Girls constitute almost 50 per cent of students in Bamiyan.3.25There are currently more than 350 schools operating in Bamiyan and Daykundi, attended by 160,000 students. Bamiyan also hosts a small university, reportedly with 3,600 students, but has struggled to attract qualified lecturers.3.26 Some families from the Hazarajat send their children to Kabul for courses during the winter, where the Hazara community operates a number of private schools. The quality of Hazara-run schools tends to be better than many other schools in Afghanistan, demonstrated by relatively high university acceptance rates.…People associated with the government or the international community…3.30 Due in part to improvements in the situation of the Hazara community since 2001, Hazaras are widely perceived to be affiliated with both the government and the international community. Many Afghans, including Hazaras, travel abroad to Iran, Pakistan, Europe or other western countries to seek employment or educational opportunities. There are also large communities of Hazaras living overseas, including in Australia. This is not to suggest that all Hazaras face the same level of risk as those working for the government or the international community. Rather, the perception of Hazaras having disproportionately benefitted from the ousting of the Taliban regime, or the perception of links with the international community, may in some circumstances be a contributing factor in the choice of target for an attack that would have happened anyway. These concerns are particularly evident with regard to Hazaras travelling by road between Kabul and the Hazarajat (see ·security situation’ above).…Treatment of Returnees4.11 Returnees from western countries are almost exclusively returned to Kabul. While some families are returned, most returnees tend to be single men travelling alone. While men of working age are more likely to be able to return and reintegrate successfully than unaccompanied women and children, the lack of family networks for single men can also impact on their ability to reintegrate into Afghan community. The relatively better economic opportunities available mean returnees often choose to remain in Kabul. There are no tracking mechanisms for these returnees, so it is difficult to assess the conditions they face. There are plausible, but anecdotal, reports of returnees from western countries turning up in drug communities. DFAT assesses that, because of Kabul’s size and diversity, returnees would be unlikely to be discriminated against or subject to violence on the basis of ethnicity or religion. There is a large Hazara population living in Kabul.
Evidence
Evidence Before The Court
The applicant’s concerns largely relate to [32]-[34] of the IAA’s decision, which provide (without editing or alteration) as follows:32. I am, however, willing to accept that if the applicant were to return to Kabul there is a real chance that he might be perceived as a non-observant Muslim whose practise of Islam has lapsed while he has been abroad in a western country. Given that it is the applicant’s implicit claim that, to some degree at least, he formerly did practise the Shia Muslim faith in Kabul and adhere to at least some of its public observances, and given that his former level of observance of the Shia Muslim faith would have been known by his mother and siblings, and would likely have been broadly known by many of the other residents in the Kabul neighbourhoods where he did business and resided, and given that in his own Hazara community it would likely become known to at least some persons that he has returned from Australia, a western country, and given that it would be observed that he was no longer adhering to the observances of Shia Islam to the extent that he did prior to his April 2013 departure from Afghanistan, such an outcome seems plausible. Even so, there is very little evidence within the information before me to indicate that returnees from western countries have suffered harm because of a non-observant or lapsed practise of Islam in such circumstances. The only notable evidence in this regard come from asylum seeker advocates but is not reported more broadly. A 2013 report produced by one such advocate has claimed that of a group of surveyed young Afghans returned from the UK to Kabul that a quarter had experienced “harm or difficulties as a result of being viewed as ‘Westernized outsiders’”, which in some cases saw them report difficulties due to the fact that they were perceived as having lapsed in their practice of Islam. It has been submitted that Hazaras in Afghanistan are extremely conservative and extremely religious. I note, however, that of all Afghanistan’s ethnic groups it is the minority Hazaras who are known for having a favourable outlook upon western countries like Australia, and of migration to and seeking asylum in such countries, and that while Hazaras are nonetheless known for their commitment to the faith of Shia Islam, the evidence before me does not indicate that there has been a trend of Hazaras being attacked by other members of the Hazara community for perceived acts or lapsed Islamic behaviour, or for the perceived contravening of social mores, or that Hazara society is broadly affected by the kind of conservative attitudes with regard to religion which are often found within Afghanistan’s Pashtun community, particularly in rural areas (said to be affected by “an instinctive, wellrooted conservatism”).33. On the evidence I accept that there is perhaps a real chance that the applicant might, as a perceived lapsed or non-observant Shia Muslim, face some discrimination from some conservative members of his own Hazara community in western Kabul in terms of such persons being unwilling to do business with or employ him. But given the manner in which Afghans in Kabul tend to live within their own communities, given that most Hazaras have a favourable outlook towards western countries and toward migration to and/or seeking asylum in western countries, and given the extent to which many Afghan Muslims do no strictly adhere to Islam’s public observances, and given that the applicant has never indicated that his only family is particularly conservative or a threat to him in this regard, I am not satisfied that there is a real chance that he would experience any harm from his own family in this regard (including being disowned), and I am not satisfied that any discrimination the applicant might face in this regard from (conservative) members of his own Hazara community in Kabul would be of such an extent that he would face a real chance of being somehow denied the capacity to subsist (indeed, as will be discussed further below, given that the applicant would be returning to to live with his family in west Kabul as an adult with the experience of having previously established a successful business in Kabul I am satisfied that such experience would offset the various challenges which he might face in establishing himself in Kabul including any discrimination of this kind). But beyond such discrimination, which I do not consider would amount to serious harm, I am not satisfied that the applicant would face a real chance of harm of any other kind in Kabul from other Hazaras for reason of being a perceived lapsed or non-observant Muslim, and/or because he no longer practises Shia Islam, and/or a failed asylum seeker, and/or because he has returned from a western country, and/or for reason of his having abandoned Islam for atheism/agnosticism, and/or because he would be perceived as being an apostate.34. Moreover, the evidence before me does not suggest that there is a real chance that the Afghan authorities, or that persons from outside the applicant’s own Hazara community would, in Kabul, take any interest in his decision to no longer practise Islam given that the area he would be returning to, western Kabul, is dominated by Hazaras and given that Kabul’s various ethnic groups tend to live within their own communities. There are sometimes reports of punishments being administered by the parallel justice structures of insurgent groups like the Taliban upon persons accused of a lapse in their practise of Islam, or some other kind of deemed immoral behaviour, but such incidents tend to occur in rural areas under the control or at least influence of such insurgent groups, and the evidence before me does not indicate that there is a trend of such incidents occurring in the Hazara neighbourhoods of west Kabul. The applicant has submitted that he believes that some members of the Hazara community work as informants for groups like the Taliban and Islamic State but, again, and while I accept that at least some Hazaras would come to know of the applicant’s having returned from Australia, given the extent to which Hazaras engage in such migration (and even allowing for the fact that many may conceal such associations upon return to Afghanistan) Kabul would be host to a significant number of Hazaras who are not strict adherents to the public observances of Islam, and not all of these persons would conceal their migration history, and yet the evidence before me does not indicate that there has been a trend of attacks in Kabul upon Hazaras who have returned from seeking asylum in western countries, and/or who have lapsed in or become non-observant in their practise of Islam, and/or on the basis of their being (imputed) Shia Muslims.
Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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