FLP17 v Minister for Home Affairs
[2019] FCCA 1268
•6 May 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| FLP17 v MINISTER FOR HOME AFFAIRS | [2019] FCCA 1268 |
| Catchwords: MIGRATION – Protection visa – application for leave to amend grounds – where amended application not filed within time frame set by Registrar – whether proposed amended ground lacked merit – where applicant conceded existing ground of application lacked merit – application to amend dismissed – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.5(1)(a)(v), 5J(1)(c) and 91WA(1) & (2)(a) |
| Cases cited: DZU16 v Minister for Immigration & Border Protection [2017] FCCA 851 FCS17 v Minister for Immigration & Border Protection [2019] FCCA 1024 |
| Applicant: | FLP17 |
| Respondent: | MINISTER FOR HOME AFFAIRS |
| File Number: | ADG 515 of 2017 |
| Judgment of: | Judge Heffernan |
| Hearing date: | 6 May 2019 |
| Date of Last Submission: | 6 May 2019 |
| Delivered at: | Adelaide |
| Delivered on: | 6 May 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr P Barnes |
| Solicitors for the Applicant: | Beena Rezaee Legal & Migration |
| Counsel for the Respondent: | Mr D F O'Leary |
| Solicitors for the Respondent: | Sparke Helmore Lawyers |
ORDERS
The name of the respondent be amended to read ‘Minister for Home Affairs’.
The application for leave to rely on the Amended application is dismissed.
The Application filed on 13 December 2017 is dismissed.
The applicant pay the costs of the respondent fixed in the amount of SEVEN THOUSAND FOUR HUNDRED AND SIXTY SEVEN DOLLARS ($7,467.00).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT ADELAIDE |
ADG 515 of 2017
| FLP17 |
Applicant
And
| MINISTER FOR HOME AFFAIRS |
Respondent
REASONS FOR JUDGMENT
(Settled from transcript)
This is an application by the applicant for leave to file an Amended Application. The existing Application was filed on 13 December 2017 and is an application for judicial review of a decision of a delegate of the respondent (‘the original application’). That decision found that the applicant was an excluded fast-track applicant pursuant to s.5(1)(a)(v) of the Migration Act 1958 (Cth) (‘the Act’), and for that reason the delegate’s decision comes before this Court.
The applicant appeared before a Registrar of this Court on 7 February 2018 and orders were made on that occasion giving him leave to file and serve any Amended Application by 30 March 2018. He was also given leave to file any further material, including transcript, and other materials he sought to rely upon at the hearing of this matter by 30 March 2018. He did not file an Amended application by that date or any other materials.
An Amended Application was filed on 2 May 2019, outside the timeframe permitted by the Registrar. Hence the application for leave to rely on the Amended Application. That application is opposed by the respondent. In support of the application for leave to rely on the Amended Application, the applicant relies on the affidavit of Besmellah Rezaee affirmed on 6 May 2019. He is the solicitor for the applicant. The affidavit indicates that his services and consequently the services of counsel were only recently retained by the applicant.
It deposes that the applicant had previously been advised by the Refugee Advocacy Service of South Australia (‘RASSA’) and remained of the belief until very recently that they would take on the carriage of this matter. Approximately three weeks ago, Mr Rezaee’s instructions are that the applicant realised that the RASSA would not be representing him in this application. It was then that he approached his solicitor’s office and the solicitor commenced reviewing the papers.
Mr Barnes, of counsel, was contacted on 17 April 2019 and gave certain advice as to the need to amend the application. I should note at this point that Mr Barnes conceded at the outset of his submissions that the original application as filed is not sustainable and would inevitably fail. On 1 May 2019, Mr Barnes provided a written outline and a written draft Amended Application. As I have said, the respondent has indicated they do not consent to the amendment.
The Amended Application raises one ground which is particularised in some detail as follows:
“The Minister committed jurisdictional error in failing to consider within the assessment of the real chance of serious harm or real risk of significant harm in Afghanistan whether, in order to avoid such a chance or risk, the applicant could reasonably be expected to relocate, and in particular whether it was practicable for him to do so, but confined his consideration to whether there was a real chance of serious harm in all areas of Afghanistan or a significant risk in all areas of Afghanistan
Particulars
(a)Having found that there was a real chance of serious harm if the Applicant returned to his home area, the Minister was then required to consider, under s. 5J(1)(c) whether the real chance “relates to all areas of a receiving country” namely, Afghanistan.
(b)The Minister interpreted s. 5J(1)(c) to mean that the Applicant would not have a well-founded fear of persecution if he would not face “serious harm” in an alternative location within Afghanistan, i.e. Kabul.
(c)Similarly, the Minister considered that although there was a real risk of “significant harm” if the Applicant returned to his home area, the risk did not exist in all areas of Afghanistan, and it was reasonable for him to relocate to Kabul, applying s. 36(2B) of the Act.
(d)In considering whether or not it was reasonable to expect the Applicant to relocate within Afghanistan but confiding that consideration to whether the Appellant would suffer “serious harm” per s. 5J(1)(c), or “significant harm” per s. 36(2B), the Minister erred.
(e)Section 5J(1)(c), properly construed, does not have the effect of excluding the requirement to consider whether it is reasonable in the sense of practicable to expect the Applicant to relocate to another part of Afghanistan: SZATV v Minister for Immigration and Citizenship and Another [2007] HCA 40; (2007) 233 CLR 18. This is because if it is not reasonable for the Applicant to relocate to another part of the same country, his fear of persecution relating to the entire country, is well founded.
(f)In misconstruing and misapplying s. 5J(1)(c), the Minister failed to consider and apply the proper test for internal relocation, and thereby erred.”
Applicant’s submissions
In support of the application, Mr Barnes conceded quite properly and as he had to, that this was obviously a late application to amend, the instructing solicitor having only been placed in funds on 29 April. With respect to the merits of the application itself, Mr Barnes submitted that a similar argument had been presented during argument before this Court in DZU16 v Minister for Immigration & Border Protection[1] which was later the subject of an appeal to the Full Court. That appeal was successful but apparently not on the particular ground that Mr Barnes seeks to advance on behalf of the applicant but, rather, on what was described as procedural irregularity.
[1] [2017] FCCA 851
There have been two other judgments of this Court, namely, FCS17 v Minister for Immigration & Border Protection[2] and DWY17 v Minister for Immigration & Border Protection[3] which dealt with a similar question to that raised by Mr Barnes on the proposed Amended Application. The argument did not succeed in either case and both have been appealed against. Those appeals are pending.
[2] [2019] FCCA 1024.
[3] ADG 358 of 2017, dismissed on 12 April 2019 by Judge Young (reasons not yet published).
In counsel’s submission, this is a strong application on the merits of the ground itself. It involves a question of statutory construction. Whilst Mr Barnes acknowledged that leave was required to pursue the amended ground, he submitted that this Court would benefit from full submissions on the authorities and that it is a question of some importance not simply to the applicant but also potentially to other applicants. The proposed ground involves implications of s.5J(1)(c) of the Act, which states as follows:
“5J 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:
…
(c)the real chance of persecution relates to all areas of a receiving country.”
The proposed ground deals with the question of whether there is a real chance of harm that “relates to all areas of a receiving country”, in this case, Afghanistan, in the context of a consideration of relocation.
Mr Barnes submits that it is necessary to construe the statutory provision not simply on its plain meaning but also to consider the objects and purposes of the legislation. The Act has multiple purposes, all to do with controlling and regulating immigration, and the context of the legislation is to create mechanisms to achieve that control and regulation. One of the claimed aims of the legislation is to provide protection to persons who are found to be refugees. Mr Barnes submitted that the third limb of the well-founded fear of persecution test is satisfied because if it is not reasonable in the sense of being practicable to require a person to relocate, then the decision itself will be unreasonable.
In this case, it was submitted that the real chance of serious harm ‘relates to’ the alternative place as much as the place from which the applicant has fled from. Mr Barnes submitted to me that the explanatory memorandum to the section, which is one of the extrinsic materials that can be considered, is pertinent, and he submitted that to the extent that it asserts a governmental aim to exclude a reasonableness test from the relocation provision, it does not restrain the Court’s consideration from applying the test as enunciated by the Court in SZATV v Minister for Immigration and Citizenship.[4]
[4] (2007) 233 CLR 18.
Mr Barnes submitted that some authority contrary to that is found in DZU16, a decision of Judge Driver of this Court in which his Honour held that s.5J(1)(c) meant that the decision-maker was not required to consider the reasonableness of relocation in assessing the status of a refugee. SZATV was pertinent, he submitted, because it established that a well-founded fear of persecution need not extend to the whole of the territory. In his submission, if the government had wanted to exclude that principle by the terms of s.5J(1)(c), it would have used the words “extend to” and not “relates to”.
If it had used the term “extend to”, that would suggest a geographical aspect encompassing the entire country in question. The use of the term “relates to” is not confined to geography and has, in Mr Barnes’ submission, a broader meaning. It was submitted that nothing in the decision of DZU16 suggested that that argument was advanced before the Court, so for that reason, the argument postulated in the proposed amended grounds is one that has not been conclusively dealt with.
Respondent’s submissions
For the respondent, Mr O’Leary submitted that the affidavit relied upon by the applicant does not explain the very lengthy delay between the filing of the Application and the formulation of the Amended Application. He acknowledged that this was not through any fault of Mr Barnes or his instructor. In Mr O’Leary’s submission, there were three reasons why there was no merit to the application to amend in the terms sought.
The first was that the application itself would be futile by virtue of a finding made by the delegate[5] that the applicant had provided bogus documents. That finding has not been challenged by the applicant and it is not proposed that it will be challenged. The operation of s.91WA(1) is fatal to the applicant’s application. That section states as follows:
“Providing bogus documents or destroying identity documents
(1)The Minister must refuse to grant a protection visa to an applicant for a protection visa if:
(a)the applicant provides a bogus document as evidence of the applicant's identity, nationality or citizenship; or
[5] Court Book (‘CB’) p 129.
(b) the Minister is satisfied that the applicant:
(i) has destroyed or disposed of documentary evidence of the applicant's identity, nationality or citizenship; or
(ii) has caused such documentary evidence to be destroyed or disposed of.”
In short, it provides that the Minister must refuse to grant a protection visa to an applicant if the applicant provides a bogus document as evidence of the applicant’s identity, nationality or citizenship, or certain other circumstances unless the applicant has a reasonable explanation for providing the bogus document, or for the destruction or disposal of documentary evidence and has provided documentary evidence of their identity or taken reasonable steps to provide such evidence.
The finding of the delegate, which also included a consideration of the applicant’s explanation as to the provision of the documents in question that were found to be bogus, concluded that the delegate did not regard the applicant has having a reasonable explanation for providing bogus documents as evidence of his identity, nationality or citizenship. It also concluded that the delegate did not accept the applicant’s explanation that the documents were genuine. That being the case, it is not possible for the applicant to overcome the clear operation of s.91WA.
The second ground of opposition was based on the submission that DZU16 deals, in effect, with this argument in these terms:
“139.The effect of s 5J(1)(c) of the Migration Act is that the decision-maker needs only to consider whether an applicant faces a real chance of persecution in all areas of the country to which he or she will return (commonly referred to as the “first limb” of the relocation test). Section 5J does not, however, deal with the broader question as to whether relocation is reasonable in the circumstances of a particular case (commonly referred to as the “second limb” of the relocation test).
140.Nothing in the judgment of Black CJ in Randhawa at 442 or in the judgment of the High Court in SZATV, to which the applicant has referred in his submissions, affects the Minister’s construction of s 5J(1)(c). Those cases provide that a person has a well-founded fear of persecution if, relevantly, it is not reasonable in the circumstances for a person to relocate to a particular region in his or her country of nationality even if he or she does not face an appreciable risk of persecution in that place. Subsection 5J(1) now deals exhaustively with the concept of a well-founded fear of persecution, with subparagraph (c) codifying the relocation test.
141.Secondly, and in any event, the Authority considered the reasonableness of the applicant’s having to relocate to Mazar-e-Sharif in the context of determining his claims for complementary protection at [49]–[61],99 as it was required to do by force of s 36(2B)(a). Even if the Minister’s construction of s 5J(1)(c) were not correct, there is no sound reason for the Court not to treat the Authority’s findings as to the reasonableness of relocation — which were purely factual — as applying equally to the reasonableness of relocation in the Refugees Convention context.100 Where the Authority has made those findings, the result cannot be jurisdictional error for the same reason that the result would not be jurisdictional error where a decision-maker refers to findings of fact that it has made in assessing an applicant’s circumstances against the criterion in s 36(2)(a) when determining his or her claims for complementary protection.
158.I accept the Minister’s submission … that, following the insertion of ss 5H and 5J into the Migration Act, the Authority was not required to consider the reasonableness of relocation in its assessment of the applicant’s claims to be a refugee. It remained necessary to consider the reasonableness of relocation in considering the complementary protection criterion. The question is whether the Authority erred in that regard. Given that the question of the reasonableness of relocation only arises in respect of the complementary protection assessment, the Court is entitled to expect a free standing assessment of that issue, and earlier Court decisions permitting decision makers to draw on assessments relevant to the refugee criterion should be treated with caution.”
Finally, Mr O’Leary submitted that whilst the Minister’s contention is that the delegate was not required to consider reasonableness of relocation in terms of the practicalities or what is practicable, the delegate in this case did, in fact, undertake something very close to the task envisaged by SZATV.
In particular, the delegate took into account the circumstances of the applicant in the context of a relocation to Kabul including: concepts of kinship; the importance of extended family structures; his status as being single; able-bodied; and the ability to subsist without family and community support in urban and semi-urban areas; the situation for returnees to Kabul; the fact that he claimed not to have accommodation; was not familiar with Kabul; and the likelihood of reintegration in the context of not necessarily having pre-existing social relations connecting him to individual members of his ethnic community in Kabul.
The delegate also considered employment growth, the fact that the applicant was literate in both Hazari and English and his personal circumstances, acknowledging that whilst there would be challenges, it did not regard relocation as unreasonable. It also noted that he did not have any specific vulnerabilities. Mr O’Leary’s submission was that these were exactly the sort of considerations that were envisaged by SZATV.
In his brief reply, Mr Barnes submitted that it would be an absurd interpretation of s.91WA if Australia was to deny protection to a person who needed it simply because they were found to have used bogus documentation. He acknowledged that to some extent, such an absurdity might be ameliorated by subs.(2)(a) of s.91WA which takes into account the possibility of a reasonable explanation being provided for the provision of such bogus documents. He submitted that no principle of judicial comity arose with respect to DZU16 because the point in question was not the ratio of the case.
Finally, he submitted the consideration by the delegate of what conditions were like in Kabul was based under the legal test of significant harm and not the relevant test.
I have considered the affidavit of Mr Rezaee, the terms of the Amended Application and the submissions put to me by counsel. I have come to the conclusion that the delegate having determined or found that the applicant had provided bogus documents and that he did not have a reasonable explanation meant that the Minister had no option but to refuse to grant a protection visa by virtue of the operation of s.91WA and, for that reason, in the circumstances of this applicant, his application would be futile and lack merit.
Accordingly, I dismiss the application for leave to rely on the Amended Application and I make the orders to be found at the beginning of these reasons.
I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Judge Heffernan
Associate:
Date: 14 May 2019
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