FDC18 v Minister for Immigration

[2020] FCCA 282

FEDERAL CIRCUIT COURT OF AUSTRALIA

FDC18 v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 282

Catchwords:
MIGRATION – CITIZENSHIP AND MIGRATION – Migration – Review of decisions – Judicial review – decision of Immigration Assessment Authority.

Legislation:

Migration Act 1958 (Cth), ss.65, 473CA, 473DB, 473DC, 473DD, 473DE

Applicant: FDC18

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

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: PEG 511 of 2018

Judgment of: Judge Jarrett

Hearing date: 23 January 2020

Date of Last Submission: 23 January 2020

Delivered at: Melbourne

Delivered on: 13 February 2020

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: The Australian Government Solicitor

ORDERS

1. The name of the first respondent be changed to Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs;

2. The application filed on 2 October 2018 be dismissed; and

3. The applicant pay the first respondent’s costs of and incidental to the application fixed in the sum of $5,200.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

PEG 511 of 2018

FDC18

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

1. The applicant seeks judicial review of a decision of the second respondent made on 10 September, 2018 that affirmed a decision made by a delegate of the first respondent to not grant the applicant a protection visa.

2. Despite directions permitting the applicant to file an amended application, further affidavit evidence relevant to the grounds of the application and requiring the applicant to file written submissions in support of his application, the applicant has done none of those things. 

3. I have written submissions from the first respondent.  The first respondent opposes the application and the second respondent enters a submitting appearance.

Background

1. The applicant is a Hazara Shi’a citizen of Afghanistan who entered Australia at Christmas Island on 13 June, 2013.   For the purposes of the Migration Act 1958 (Cth) he is an unauthorised maritime arrival. 

2. Upon the invitation of the first respondent the applicant lodged an application for a safe haven enterprise visa on 2 June, 2017.  He claimed protection on the basis that:

   a)he and his business partner had been abducted by the Taliban and accused of working for the government or an NGO because they had bought a large quantity of cement to sell in their shop;

   b)he was of the Shi’a religion and Hazara ethnicity;

   c)he was a returnee from the west; and

   d)his personal information was inadvertently published online by the Australian Government, and as a civilian, he fears harm from insecurity and generalised violence.

3. The applicant attended an interview before the Department on 23 October, 2017 to give evidence in relation to his protection claims.  He also gave to the Department a further statement in which he raised his data breach claim and provided  a copy of his Taskera (with an English translation),  various country information,  a copy of his Facebook page as at 11 October, 2017.  He also provided a post-interview submission.

4. On 12 January, 2018 a delegate of the Minister made a decision to refuse to grant the applicant a protection visa. The application was referred to the second respondent in accordance with s.473CA of the Act.

5. The applicant did not provide any submission to the second respondent or ask it to have regard to any new information for the purposes of its review.

6. On 10 September, 2018 the second respondent affirmed the delegate’s decision.  The applicant filed the present application for judicial review on 2 October, 2018.

The second respondent’s decision

1. The second respondent did not consider that the applicant faced a real chance of harm as a result of his personal information being disclosed in the data breach event in 2014.  It reached that conclusion after considering country information indicating that Afghan authorities were not targeting returning asylum seekers and that the Taliban and other armed groups did not have sophisticated databases of information.  It was not satisfied that any group or person was motivated or had the capability to identify or target the applicant from the information released in the data breach.  Further, the second respondent considered that:

   a)the applicant’s name was not uncommon and his birthdate was the same as it is for many Afghans registered in Australia;

   b)no details about his addresses or past addresses, or his claims were released in the breach; and

   c)the information released was only available for a short period.

   The second respondent concluded that in the unlikely event that it was accessed by the Afghan authorities or armed groups such as the Taliban, it was not satisfied that the applicant could be identified from the available information.  Accordingly, the second respondent was not satisfied that there is any chance or risk of the applicant being identified, targeted or harmed.

2. After setting out the claim made by the applicant to have been abducted by the Taliban, the second respondent recorded in its reasons:

   16. I have serious concerns about the credibility of the account, but the applicant has been consistent in this evidence. While highly unlikely, it is not implausible that this series of events could have occurred as claimed. I am prepared to accept the applicant’s account. However, the ease with which they escaped raises doubts as to the level of the Taliban that abducted the applicant, or whether they were indeed Taliban and not some other armed or criminal element.

3. The second respondent proceeded to consider whether the applicant’s abductors represented an ongoing threat to him.  The second respondent accepted the applicant’s claim that he fled to Pakistan after the abduction and that the Taliban had a copy of his Taskera.  However, there were a number of matters that the second respondent thought meant that there was no chance or risk of harm on an ongoing basis, including:

   a)the fact that the applicant and his partner were not pursued after they escaped their abductors;

   b)the time which had passed since the abduction;

   c)the fact that the applicant’s father and business partner continued to operate the applicant’s (and his partner’s) shop for some time after he fled; and

   d)the applicant did not report that his father or his business partner had received any threats while they remained operating the store.

4. In this claim the second respondent concluded:

   25.    I have accepted the applicant and his former business partner were abducted, questioned, beaten, threatened and detained by the Taliban or another armed group in 2009. I have accepted they escaped that detention and, fearing further harm, the applicant fled to Pakistan. However, I am not satisfied the applicant was ever pursued by his abductors, or that he had any ongoing profile with them following his escape. I am also satisfied that whatever profile or suspected profile the applicant had with the Taliban or any other armed group would have ceased. If the applicant were to return to live and work in Malistan and Ghazni, I find there is no real chance of him being identified (through his documents or otherwise) or facing harm in connection to this incident, his escape from detention, or any actual or imputed profile arising from this incident, including the Taliban’s perception that he was supporting the government or NGOs, or any actual or imputed political opinion or profile that he is pro-Government or anti-Taliban. I find his fears on this basis are not well founded.

5. The second respondent considered the applicant’s claim based upon the cessation of his belief and practise of the Shi’a Islam faith. It rejected his claim that he had abandoned his faith after carefully considering the applicant’s evidence about that matter.  It found:

   37.    Weighing everything before me, I am not satisfied the applicant is a non-believer or a non-practising Shia. I consider he is a low level adherent and practitioner of his Shia Islam faith, but I am satisfied he is a believer, that he still identifies as Shia, still attends mosque, fasts and attends religious ceremonies at times. I consider he has exaggerated his situation in order to put forward a higher risk profile. I am satisfied his evidence undermines his claims.

6. On the basis of those findings, the second respondent said:

   38.    In terms of his limited adherence and religious practice, I am not satisfied he would face a real chance of harm for those reasons. While clearly highlighting the risks to certain groups and types of activities (apostasy, blasphemy, conversion and proselytising), the country information does not indicate that persons who practise their religion in a limited or low level way, face mistreatment and/or harm as a consequence of that behaviour within Afghanistan.  Indeed, this appears to be the applicant’s experience in his home area, where I am satisfied his limited religious adherence did not impact him living safely in Malistan and/or running of a business. For clarity, I found his evidence about the treatment he faced vague and general, and I am not satisfied he was ever specifically discriminated against, ridiculed or targeted for harm in his home area because of his low level adherence. I am prepared to accept he may have faced some social criticism if he did not attend mosque regularly, whether from his family or peers, but I am satisfied it did not manifest in any form of harm or that the applicant ever feared harm for those reasons.

   39.    I am satisfied he has no additional profile, such as apostasy or religious conversion, that would lead him to be targeted for harm. I have no reason to consider he would renounce or speak out (blaspheme) against Islam. Again, he still identifies as a Shia, and he still believes in the twelve imams. I am satisfied that he will attend mosque, fast and attend religious ceremonies from time to time, and that this is consistent with his past level of religious practise. I am not satisfied he would need to modify his behaviour to avoid harm. I consider his limited religious adherence did not put him at a chance or risk of harm in the past. I find he has not and would not need to modify his behaviour (such as by attending more mosque more regularly) to avoid harm.

   40.    I am satisfied there is no real chance of the applicant facing harm as a low level adherent and practitioner of his Shia Islam faith. I do not accept he is a non-practising Shia Muslim, an apostate, a non-believer, a convert from Islam, that he would be imputed with such a profile, or that he would face a real chance of harm for any of these reasons.

7. The second respondent accepted that the applicant suffered some past discrimination on the basis of his Hazara ethnicity.  It found that the discrimination was at a level that would not threaten his capacity to subsist.  The second respondent considered whether he would be targeted by the Taliban because of his ethnicity or religion and found that country information suggested that the Taliban did not have a sectarian or ethnic agenda, rather they targeted the government, international community and security forces.  It also considered the risk of harm from Islamic State Khorosan Province (ISKP) and found that in some areas was elevated.  However, the second respondent carefully analysed the country information and determined that the risk posed by that group did not exist throughout Afghanistan.  It considered that the information established that the ISKP did not operate in the applicant’s home area and, although the risk of harm from the ISKP could not be ruled out completely, it represented only a very remote, and therefore not a real risk, of harm. 

8. The applicant claimed that there was a real risk of harm from travelling on the roads in Afghanistan because of his ethnicity.  The second respondent weighed the risk of travel on the roads in Afghanistan, taking into account the applicant’s individual circumstances and country information. It concluded that whilst there have been incidents involving Hazaras on the roads, the applicant was not at risk for reason of his religious or ethnic profile or any other reason:

   56.    Weighing everything before me, I find there is not a real chance of the applicant facing harm from the Taliban, ISKP or any other armed group or person (including Pashtuns), within his home region in Malistan, in Ghazni, the neighbouring Hazara-dominant districts, or on the roads, for reasons of his religion, ethnic or related profile. Even when I consider these factors cumulatively, in terms of profile, potential risk factors, and analysis/data about attacks, I am satisfied there is no real chance of harm. I consider his fears for these reasons are not well founded.

9. As to the applicant’s claims that he was at risk of harm because he had spent time in the west, the second respondent found that his situation as a returnee would be unremarkable.  Although not raised by the applicant, the second respondent weighed the risk of harm on account of his wealth, and concluded that the chance of him being identified as wealthy, or targeted for any of those reasons, was also remote.  The second respondent considered that whilst there would be challenges for the applicant as a returnee, he would not face a real chance of harm, and was otherwise equipped to overcome these challenges. 

10. The second respondent assessed that the applicant did not face a real chance of harm for any refugee reason, either on the basis of any singular claim advanced by him or for all of his claims taken cumulatively.

11. The second respondent made an alternative finding as follows:

    71. Alternatively, I am satisfied the applicant could take reasonable steps to modify his behaviour to avoid any chance of harm he may face arising from his profile of having returned from the west (Australia) or having sought asylum. Specifically, I am satisfied the applicant could do this by not travelling with documents (e.g. licences) or symbols that may link him to the west (Australia). I am satisfied he could secure his social media and photos on his phone, or delete/store them safely. In terms of his claims that he speaks with an accent, and or intersperses English words when he speaks Hazaragi, I again note this is a factor identified in the literature for the potential vulnerabilities for young (formerly minors) Afghan males returning to the country,but the applicant has not satisfied me that his language skills or mannerisms would be affected in the same way. The applicant is 36 years old. He spent the first 27 years of his life living and working in his home area. He had no obvious difficulties communicating with the interpreter during the visa interview and did not obviously prefer English words when speaking. I consider it very unlikely that his mannerisms, accent or spoken Hazaragi would be significantly impacted by his time in Australia, and/or that he would not quickly readapt to his home dialect. In any event, I am satisfied he could avoid any risks by not openly speaking or using English words and not discussing his time in Australia, and by wearing traditional Afghan clothing. I have found the applicant does not present as wealthy, but in terms of his savings, I find the applicant could take steps to ensure he is not targeted on that basis, for example by not discussing his money, keeping it in a secure location and not dressing in a way that indicates wealth or otherwise attracts attention. I have no reason to consider these were not steps the applicant would have taken on return to the country, and there is no information before me that indicates taking these steps would clash or conflict with the applicant’s beliefs or identity – in fact, as a person who has grown up in Malistan, I expect he would return and live as he had previously. On the basis of the information before me, I do not consider that taking these steps would conflict with any characteristics that are fundamental to his identity or conscience, or require him to conceal an innate or immutable characteristic, or require him to otherwise act in any way or do any of the things contemplated by s.5J(3)(c)(i–vi) of the Act. I consider instead that these would be reasonable (and prudent) steps given the insecurity in the country. It follows that I do not accept he would face a real chance of harm for any of these reasons, and I find his claims on this basis are not well founded.

12. Finally, although the second respondent accepted that the security situation in Afghanistan had deteriorated in recent years, it did not accept that insurgent, criminal or generalised violence was at such a level, scope or frequency that the applicant would face a real chance of harm as a civilian if he returned to live in his home area, or travelling from Kabul to his home area.

13. The second respondent determined that the applicant did not satisfy either the refugee criteria or the complementary protection criteria and the decision under review was affirmed.

The application for review

1. The applicant sets out the following grounds in his application for review:

   1. The assessor failed to properly consider all of my claims; and

   2. The assessor did not give me a chance to comment on one aspect of my claims.

2. As the first respondent submits, neither of the grounds is particularised.  I gave the applicant an opportunity to explain his grounds of review but his submissions revealed that he was concerned only with the merits of the decision rather than identifying any error, let alone jurisdictional error with the second respondent’s determination of the review before it.

3. The applicant’s claim that the second respondent failed to properly consider all of his claims seeks impermissible merits review of the second respondent’s decision.  His oral submissions to me bore that out.

4. The first respondent acknowledged that the second respondent was required to consider the applicant’s claims for protection and their component integers where those claims or integers:

   a)were the subject of a clearly articulated argument relying on established facts, or

   b)clearly emerge from the materials before the second respondent.

5. In my view the second respondent clearly did that in clear and careful reasons.  As the first respondent argues, in the present matter, the applicant has not identified any claim or integer of a claim that the second respondent has not considered.

6. The applicant’s second ground of review argues that the second respondent did not give him an opportunity to comment on one aspect of his claims.  However, the applicant has not identified which particular aspect of his claims he was not invited to comment on, nor why he says the failure to invite him to comment on that aspect amounts to jurisdictional error.

7. The first respondent argues that this ground needs to be assessed in the context of the provisions in Part 7AA of the Act. That part of the Migration Act sets out the statutory task of the second respondent and the procedures it was required to follow. The procedural fairness obligations cast upon the second respondent are set out in Division 3 of Part 7AA. Section 473DB of the Act provides that, subject to Part 7AA, the second respondent is to review the decision on the papers, without accepting or requesting new information and without interviewing the applicant. The second respondent has a discretion to obtain new information that it considers would be relevant to the review, but it does not have any duty to get, request or accept new information in any circumstances: s.473DC. Further, pursuant to s.473DD, the second respondent can only consider new information that was not before the delegate if:

   a)the second respondent is satisfied that there are exceptional circumstances to justify considering the new information; and

   b)in relation to new information provided by the applicant, the applicant satisfies the second respondent that the information was not and could not have been provided to the delegate prior to the decision under s.65 of the Act or that the information is credible personal information which was not previously known and, had it been known, may have affected consideration of the applicant’s claims.

1. Where the second respondent considers new information under s.473DD, s.473DE requires the second respondent, in certain circumstances, to give particulars of the new information to the applicant, explain to the applicant why the information is relevant to the review and invite the applicant to comment on the information.

2. However, in the present case, none of these sections were engaged. The evidence shows that the applicant was sent a copy of the second respondent’s practice direction, which contains provisions explaining an applicant’s option to provide to the second respondent a submission commenting on the delegate’s decision. The applicant did not provide any submission or new information to the second respondent and the second respondent did not otherwise obtain any new information. Because the second respondent did not have any new information before it, no occasion arose for the second respondent to consider whether the requirements of s.473DD were met, or whether any information needed to be put to the applicant under s.473DE of the Act.

3. Further, on my reading of the delegate’s decision and the reasons of the second respondent, no new dispositive issues arose in the course of the second respondent’s review. I accept the first respondent’s submission that there was no unreasonable failure by the second respondent to consider the exercise of the discretion provided by s.473DC of the Act.

Conclusion

1. No jurisdictional error is demonstrated by the procedure adopted by the second respondent.  Nor is any apparent from the second respondent’s reasons for decision.  Accordingly, the application for review must be dismissed with costs.

I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Judge Jarrett delivered on 13 February 2020

Associate: 

Date:  13 February 2020