Foz17 v Minister for Immigration

[2018] FCCA 3511

FEDERAL CIRCUIT COURT OF AUSTRALIA

FOZ17 v MINISTER FOR IMMIGRATION [2018] FCCA 3511

Catchwords:
MIGRATION – Application for a Safe Haven Enterprise visa – whether the Delegate unreasonably concluded that the applicant does not have a well-founded fear of persecution – whether the Delegate unreasonable concluded that it is reasonable and practical for the applicant to relocate – no jurisdictional error made out – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5, 5H, 5J, 36, 411, 476

Applicant: FOZ17

Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP & MULTICULTURAL AFFAIRS

File Number: PEG 705 of 2017

Judgment of: Judge Street

Hearing date: 29 November 2018

Date of Last Submission: 29 November 2018

Delivered at: Perth

Delivered on: 29 November 2018

REPRESENTATION

Solicitors for the Applicant: Mr N Draper
Granich Partners

Counsel for the Respondent: Mr P Macliver

Solicitors for the Respondent: Australian Government Solicitor

ORDERS

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

2. The application is dismissed.

3. The applicant pay the respondent’s costs fixed in the amount of $7,328.00.

DATE OF ORDER: 29 November 2018

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 705 of 2017

FOZ17

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP & MULTICULTURAL AFFAIRS

Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for a Constitutional writ and/or declaratory relief in respect of a decision of the respondent, which is migration decision made under the Migration Act 1958 (Cth) (“the Act”) within the Court’s jurisdiction under s 476 of the Act made by a delegate of the Minister on 23 November 2017, finding that the applicant is not a person in respect of whom Australia has protection obligations under the Act. The decision in the present case was a fast-track decision within the meaning of s 5 and s 411 of the Act and was not, as such, a reviewable decision within Part 7 of the Act.

2. The applicant was found to be a citizen of Afghanistan and his claims were assessed against that country. The applicant was found to be a Hazara and a Shia Muslim. The applicant had claimed to fear harm from the Taliban by reason of his religion and by reason of his ethnicity. The applicant also claims to fear harm from people who had killed his father and brother and by reason of having lived in a western country. The delegate did identify that the applicant’s identity remains inconclusive, but accepted that he is a Shia Hazara from Afghanistan.

3. The delegate accepted that the applicant lived in a particular region in the Jaghori District in the Ghazni province and that his father was killed by the Taliban around 2001, because he refused to pay taxes to that organisation and because he was perceived as an organiser of a protest against the Taliban’s taxes. The delegate accepted the applicant was a child at the time his father died and was not involved in protests about tax payments. The delegate accepted the applicant remained living with his family in his home village for about a year after his father died and that his brother was abducted by members of the Taliban around 2001. The delegate accepted that the applicant travelled to Iran for about a year after his father’s death and that he remained there until 2005. The delegate accepted the applicant sought asylum in the United Kingdom, which was refused and he was subsequently deported back to Afghanistan in 2010.

4. The delegate accepted that the applicant faced a real chance of harm if he returned to him home village in the Jaghori District. The delegate however identified that s 5J(1)(c) of the Act requires the real chance of persecution to relate to all areas of the receiving country.

5. The delegate was not satisfied the applicant faced a real chance persecution in Mazar-e-Sharif. The delegate identified country information in relation to Mazar-e-Sharif as being one of the safest cities in Afghanistan and that it recorded the lowest number of civilian casualties compared to other cities. The delegate referred to the general security situation in Afghanistan and was satisfied the applicant has no profile of the kind identified in DFAT country information, nor would he have proximity to persons with such a profile on return to the country.

6. The delegate referred to the importance of assessing the recent attacks on Shias in the context of the security situation in Afghanistan as a whole and took into account country information. The delegate found there is not a real chance the applicant will face harm of sufficient gravity as to amount to persecution on the basis of his religion, in the event he was to return to Mazar-e-Sharif in the reasonably foreseeable future.

7. The delegate was satisfied the risk of the applicant being abducted, physically harmed or otherwise targeted by Taliban, Islamic State Khorasan Province (“ISKP”) or any other person or groups, in the reasonably foreseeable future on account of his race or religion to be remote.

8. The delegate found the imminent increase in US military presence in Afghanistan is likely to improve the overall security situation. The delegate found the low incidence of security incidents and insurgent activity in Mazar-e-Sharif is significant, both in terms of the applicant’s claims that Hazara Shias are targeted for harm and in respect of the chance or risk of harm in generalised violence.

9. The delegate referred to the major security issues in the country that continue to relate to an insurgency. The delegate found from the country information that there is no indication that the situation in Mazar-e-Sharif is likely to deteriorate, or that persons with the applicant’s low profile will face a real chance of being targeted and seriously harmed in the reasonably foreseeable future. The delegate referred to taking into account the country information before the delegate, including the comparatively stable security situation in Marar-e-Sharif and the lack of the applicant’s adverse risk profile, and found the chance of the applicant being seriously harmed for reasons of religion or ethnicity, or any related profile or from his political or religious or ethnic background, or in terms of generalised violence within Mazar-e-Sharif, by the Taliban or any other insurgent group to be remote.

10. The delegate found the chance of the applicant being harmed by the Islamic State in Mazar-e-Sharif would be remote. Weighing all the country information before the delegate, the delegate considered Mazar-e-Sharif comparatively secure and was satisfied the applicant would be able to return to and live in the city, and that there is only a very remote chance that he would be harmed for reasons of his religion or ethnicity, or any related profile, or in generalised violence, involving the Taliban, Islamic State or any other groups active in Afghanistan.

11. The delegate also took into account that the applicant may face discrimination as Hazara. The delegate referred to country information in relation to Hazaras, including in respect of healthcare and basic public education and, in regard to the country information, whilst accepting that societal discrimination against Hazaras still occurs, was satisfied that any discrimination the applicant may face on return would manifest in the form of nepotism in favour of a person or group, rather than negative discrimination against Hazaras or against the applicant personally. The delegate was not satisfied that any such discrimination would amount to serious harm.

12. The delegate referred to the applicant’s fears because of his father having been killed by the Taliban and that he would be considered pro-western, having lived in western countries, being the United Kingdom from 2005 to 2010 and at least five years in Australia. The delegate referred to country information in relation to those who are targeted and was satisfied the applicant had no such profile.

13. The delegate also took into account that it was over 16 years ago when it was the applicant’s father was killed. The delegate found that there was a lack of interest in the applicant and his sister prior to their departure from Afghanistan. The delegate found the lack of interest in the applicant in the period prior to his departure from Afghanistan, one year after his father’s death, and other members of his family suggest the Taliban did not have an interest in the applicant, nor any other member of his immediate or extended family.

14. The delegate was satisfied the applicant has not been imputed with a political opinion based on the actions of his father around 2001 to a level that it would attract interest of the Taliban or any other insurgent group in Afghanistan. The delegate found there is no evidence to indicate that there is any recent threats against the applicant, including members of his immediate family. The delegate found the chance of the Taliban as a whole organisation maintaining either interest or knowledge in the applicant is remote. The delegate found the applicant does not face a real chance of persecution on the basis of an imputed political opinion if he returns to Mazar-e-Sharif in the reasonably foreseeable future.

15. The delegate referred to the applicant’s Hazara Shia ethnicity and referred to DFAT country information.

16. The delegate found that Hazara Shias do not face a real chance of being attacked by insurgents in Mazar-e-Sharif, nor do returnees. The delegate found the applicant does not have a profile that raises his risk of being harmed by insurgent attacks. The delegate found the applicant safely accessed Kabul and there was no evidence to suggest that the applicant would face a real chance of serious harm at the airport during the entry screening process. The delegate was satisfied the findings regarding the past experiences of the applicant, combined with the assessment of the current country information, provided a reliable basis for concluding that the applicant does not face a real chance of serious harm if he were return to Afghanistan, either now or in the reasonably foreseeable future, due to his political opinion or imputed political opinion.

17. The delegate turned to the issue of the applicant being a failed asylum seeker. The delegate took into account country information in that regard and was satisfied the applicant would not be identified as being wealthy. The delegate found, in light of the evidence considered by the delegate, that a mature-age adult male, such as the applicant, does not face a real chance of serious harm in Mazar-e-Sharif as a failed asylum seeker returning from a western country.

18. The delegate was not satisfied the applicant has a well-founded fear of being persecuted by the Taliban, ISKP or any other insurgent group for any of the reasons advanced in respect of his Hazara Shia identity, because his father was killed and his brother was abducted, because he resided outside Afghanistan, because he had resided in western countries, or because he would be returning from the western country in which he had sought asylum.

19. The delegate turned to the issue of access to Mazar-e-Sharif and referred to country information in that regard. The delegate found the applicant will be able to safely access Kabul via the international airport and was satisfied the applicant can transit by air to Mazar-e-Sharif. The delegate took into account the funds the applicant had accumulated in being able to pay for those airfares. The delegate also indicated the applicant could access Mazar-e-Sharif via the international airport. The delegate was satisfied the applicant can safely access the city of Mazar-e-Sharif.

20. The delegate referred to other country information and it accepted that there had been a deterioration in the security situation of the country overall and that there had been credible, but limited, examples of Hazara Shias being targeted on the roads in Afghanistan and a number of incidents were civilians had been harmed, abducted and killed by insurgents in attacks. The delegate also identified other issues in respect of the roads and risks from criminality on the roads.

21. The delegate was satisfied the applicant would not be identified as wealthy upon return to Afghanistan. The delegate was satisfied he would not be identified as having an association with the government or international community and, given the applicant’s low profile, was satisfied there is no reason that he would be imputed to have such a profile on return to Afghanistan. The delegate accepted country information indicating, in general, that returnees from western countries or former asylum seekers are not specifically targeted for harm.

22. The delegate referred to country advice indicating a degree of risk to Hazara Shias travelling on the roads. The delegate found the examples were limited and there is no evidence to suggest any increase in Hazara Shias being targeted for harm or abduction on the basis of their religion and ethnicity on the roads in Mazar-e-Sharif. It was in those circumstances the delegate found the chance of the applicant being seriously harmed for reasons of his religion or ethnicity, or in connection with his religion or ethnicity, or any other profile to be remote.

23. The delegate referred to country information in relation to generalised violence and risks and was satisfied the applicant has no profile that would put him at risk and that he would not be a frequent traveller on the roads. The delegate was satisfied the applicant would not face a real chance of serious harm on the roads in and outside Mazar-e-Sharif due to his race, religion or for any reason within s 5J of the Act. The delegate did not accept that reducing or limiting his freedom of movement in and out of Mazar-e-Sharif would amount to serious harm.

24. The delegate found there is not a real chance of the applicant being seriously harmed on the basis of his religion or ethnicity, any actual or imputed political opinion, his membership of any particular social group, and/or other profile, including as a person who sought asylum in Australia or as a returnee who spent time in a western country. The delegate found there is not a real chance of the applicant being harmed by the Taliban, ISKP or any other insurgent group in connection with the applicant’s past in Afghanistan, including his father being killed by the Taliban and his brother being abducted.

25. The delegate found there is no real chance of the applicant travelling to Mazar-e-Sharif from Kabul. The delegate found that it would be reasonable for the applicant to remain in Mazar-e-Sharif to avoid serious harm. The delegate found any remote chance of harm the applicant may face in generalised violence would not be for the essential or significant reason of his race, religion, nationality, membership of a particular social group or political opinion.

26. Considering the applicant’s circumstances and the country information cumulatively, the delegate was not satisfied the applicant has a well-founded fear of persecution and the delegate found there is not a real chance of persecution if the applicant were to return to Afghanistan now or in the reasonably foreseeable future.

27. The delegate found the applicant does not meet the definition of refugee in s 5H(1) of the Act and that the applicant is not a person in respect of whom Australia has protection obligations under s 36(2)(a) of the Act.

28. The delegate turned to the issue of complementary protection and referred to the current security situation in Afghanistan and the assessments made by the delegate in relation to terrorist attacks and generalised violence in Mazar-e-Sharif. The delegate referred to country information in relation to attacks and referred to the imminent increase in US military presence in Afghanistan being likely to improve the overall security situation. The delegate referred to those associated with the government and international communities having a high-risk profile and having found the applicant would not face a real risk of harm in Mazar-e-Sharif based on his profile.

29. The delegate found the risk of the applicant being killed or harmed in an incident in Mazar-e-Sharif, given his absence of political profile, would be remote. The delegate accepted that security incidents may continue to occur, but did not consider the level of security incidents in Mazar-e-Sharif would mean the applicant would face a real risk of being harmed or killed while travelling around the city as part of his day-to-day life.

30. The delegate referred to societal discrimination against Hazaras, but found the applicant will not be prevented from earning a living or from accessing basic services due to his race, religion or any other reason.

31. The delegate did not accept the applicant will face treatment in Mazar-e-Sharif that would amount to significant harm referred to s 36(2)(a) of the Act.

32. The delegate then turned to the issue of the reasonableness of his relocation for the applicant in his particular circumstances and referred to country information in that regard and that the applicant, as identified in country information, is an able-bodied man. The delegate referred to the submissions advanced by the applicant in that regard and referred to the applicant’s personal characteristics, including that he is able bodied, he has work skills, he speaks different languages, he is in possession of an identity document, and he has demonstrated resourcefulness through travelling and working for extended periods in Iran and Pakistan, despite having an illegal status in these countries, and he has managed to live away from his family.

33. The delegate took into account the Mazar-e-Sharif population and the assessment in linguistic diversity. The delegate acknowledged that the applicant has no familial connections in Mazar-e-Sharif and that the applicant’s family are living in other countries. The delegate noted that the applicant’s aunt and cousins are living in the Jaghori District. The delegate referred to country information and found it possible that the applicant may find ethnic and tribal affiliations within the existing population who could assist him. The delegate also referred to the applicant’s remaining family being in Jaghori District, potentially having contacts in Mazar-e-Sharif and being willing to assist the applicant.

34. Considering the reasonableness of relocation, the delegate referred to country information and accepted that the applicant may face difficulties resettling, including the limited support network, and establishing social connections. The delegate nonetheless found that the applicant will find assistance within the Hazara community. In that regard, the delegate expressly took into account the applicant’s previously demonstrated resilience and resourcefulness. The delegate referred to the applicant having travelled alone to Iran in 2001, where he secured accommodation, employment and remained there for four years.

35. The delegate referred to the applicant’s travel to Europe and to the United Kingdom. The delegate also referred to the applicant’s travel to Pakistan and securing accommodation with his sister and finding employment in the construction industry, despite his illegal status and that he remained for an extended period in Pakistan. The delegate took into account that the applicant had undertaken travel to many countries during his journey to Australia. The delegate also took into account the availability of essential services and shelter for the applicant.

36. The delegate referred to country information in respect of the business climate and acknowledged that those who arrive for casual labour in Mazar-e-Sharif are at a disadvantage relative to those who are better known. The delegate found that it would be reasonable to expect the applicant would be able to access the reintegration benefits identified in country information referred to by the delegate. The delegate was satisfied the applicant would be more likely than not to find support within the Hazara community. The delegate noted that the applicant had undertaken work in Australia and had accumulated some savings.

1. The delegate found the applicant’s friends would assist him assimilate, establish accommodation and seek employment opportunities in Mazar-e-Sharif. The delegate was satisfied, given the applicant’s circumstances, resourcefulness and personal attributes, the applicant would be able to secure shelter and essential services in Mazar-e-Sharif.

2. The delegate turned to the applicant’s ability to gain employment upon return to Afghanistan and referred to the existence of underemployment across Afghanistan, including in Mazar-e-Sharif. The delegate found the applicant is able bodied, of working age and is currently undertaking work as a tiler in Australia. The delegate referred to the applicant being in possession of identity documents to support him obtaining employment and securing accommodation. The delegate found finding employment would not be an impediment for the applicant. Having regard to the applicant’s personal circumstances and work experience, and the country information identified by the delegate, the delegate was satisfied the applicant could obtain employment in Mazar-e-Sharif.

3. The delegate found the applicant would not be denied access to basic services or to earn a livelihood. The delegate found the applicant would not feel compelled to visit his home district if he returns to Afghanistan. The delegate found it was reasonable for the applicant to remain in Mazar-e-Sharif to avoid fear of harm.

4. The delegate found that, in the circumstances, it is reasonable for the applicant to relocate to Mazar-e-Sharif, where there is not a real risk that he will suffer significant harm. The delegate found the applicant failed to meet the criterion under s 36(2)(aa) of the Act.

Before this Court

1. The grounds in the application are as follows:

   1. The delegate made a jurisdictional error in that it unreasonably concluded, and/or addressed the wrong question in concluding, that the Applicant does not have a well-founded fear of persecution.

   Particulars

   (a) The delegate misdirected itself in concluding that the Applicant, of Hazara ethnicity, religion and as a returnee from Australia if he returns to Afghanistan, in particular, to Mazar-e-Sharif, when the Authority found that the Applicant faces a real chance of serious harm on his return to Jaghori, Ghanzi Province, Afghanistan, which conclusion fails to reasonably address or lead to the reasonable conclusion that the Applicant could reasonably be expected to seek refuge in Mazar-e-Sharif, where evidence of relative security due to political stability in Balkh Province and Mazar-e-Sharif does not reasonably lead to a conclusion that the Applicant does not have a well-founded fear that there is a real chance of serious harm for reasons of his ethnicity if he relocates to Mazar-e-Sharif.

   Particulars

   (i) DFAT assesses that Shia’s and non-Shia’s face a risk of being attacked by ISKP based on their religious affiliation.

   (ii) DFAT assesses that Shia are vulnerable when assembling in large and identified groups;

   (iii) that there have been specific attacks against Shia Muslims in Mazar-e-Sharif;

   (iv) that there is unlikely to be any improvement in security (in Mazar-e-Sharif) in the next 12 months.

   (b) The delegate, having had regard to the country information and personal information before it unreasonably concluded that it is reasonable and practical for the applicant to relocate to Mazar-e-Sharif.

   Particulars

   The delegate found, inter alia

   (i) societal discrimination still occurs;

   (ii) ethnic, tribal and familial connections play an important role in daily life;

   (iii) unemployment and underemployment are high across Afghanistan and affects persons across all ethnic groups and there are “clear indicators” that industry was down;

   (iv) medicine is often expensive and unaffordable;

   (v) The Applicant has no familial connections in Mazar-e-Sharif;

   (vi) that the business climate has been largely negative since the second half of 2015 and returnees faced significant challenges in accessing meaningful employment and livelihood opportunities;

   (vii) it was reasonable for the Applicant to relocate to Mazar-e-Sharif as a result of the Applicant being:

   1. resilient and resourceful as evidenced by his travels in Iran, Europe and Afghanistan throughout which he secured, inter alia, accommodation and employment; and,

   2. multilingual and had undertaken a number of Australian training courses in the listed industries.

Ground 1(a)

1. Mr Draper, the solicitor for the applicant, submitted in relation to ground 1 particular (a) that the decision of the delegate, in respect of the Refugees Convention and the applicant not having a well-founded fear, is legally unreasonable. Mr Draper in that regard referred to the particular positive findings by another delegate in respect of the security situation and also in relation to the applicant’s personal circumstances. Mr Draper submitted that no reasonable decision-maker could come to the adverse decision found by the delegate in the circumstances of the present case.

2. The reasoning of the delegate has been summarised above. That reasoning cannot be said to lack an evident and intelligible justification. That reasoning was logical and rational and open to the delegate for the reasons given by the delegate, as summarised above. There is no substance in the contention that no reasonable decision-maker could come to the adverse decision as a matter of outcome to which the delegate made. The substance of Mr Draper’s submissions are, in substance, an invitation to this Court to engage in impermissible merits review. No legal unreasonableness is made out in respect of the outcome in respect of the delegate’s reasons.

3. Mr Draper also submitted that the delegate had engaged in the use of unreliable country information and had failed to address what was said to be contradictory country information that should have been the subject of findings. It was a matter for the delegate what country information the delegate decided to accept. This ground, again, is in substance an invitation to this Court to engage in impermissible merits review. No jurisdictional error is made out by ground 1(a) of the application.

Ground 1(b)

1. In relation to ground 1(b), Mr Draper submitted that the decision in respect of the reasonableness for the applicant to relocate to Mazar-e-Sharif was legally unreasonable. The delegate’s reasons, as summarised above, are not ones in respect of which it could be said no reasonable decision-maker could come to that outcome. The delegate provided logical and rational reasons in support of the finding that the applicant could reasonably relocate to Mazar-e-Sharif. The delegate’s reasons in that regard cannot be said to lack an evident and intelligible justification, as summarised above. Ground 1(b) is in substance, again, an endeavour to engage in impermissible merits review.

2. The disagreement advanced in relation to the applicant’s circumstances and his skills does not identify any illogicality or unreasonableness in the adverse findings made as summarised above. No jurisdictional error is made out by ground 1(b).

Conclusion

1. Accordingly, the application is dismissed.

I certify that the preceding forty-seven (47) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate:  

Date:  1 February 2019