FRD17 v Minister for Immigration
[2018] FCCA 1366
•6 July 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| FRD17 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 1366 |
| Catchwords: MIGRATION – Immigration Assessment Authority – application for a Safe Haven Enterprise visa – whether the Authority failed to address particular claims or an integer of the claims made by the applicant – whether the Authority failed to consider the medical evidence relevant to its complementary protection assessment – no jurisdictional error made out – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.5H, 5J, 36, 473CB, 473DD, 476. |
| Cases cited: EII17 v Minister for Immigration & Anor [2018] FCCA 527. |
| Applicant: | FRD17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 3987 of 2017 |
| Judgment of: | Judge Street |
| Hearing date: | 25 May 2018 |
| Date of Last Submission: | 25 May 2018 |
| Delivered at: | Sydney |
| Delivered on: | 6 July 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr S Tully |
| Solicitors for the Applicant: | Ryburn Solicitors |
| Counsel for the Respondents: | Ms N Laing |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application is dismissed.
The applicant pay the first respondent’s costs fixed in the amount of $7,328.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3987 of 2017
| FRD17 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Background
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 9 November 2017 affirming a decision of the delegate not to grant the applicant a Safe Haven Enterprise visa.
The applicant was found to be a citizen of Afghanistan and his claims were assessed against that country. The applicant applied for a Safe Haven Enterprise visa on 23 March 2016. The applicant was found to be a Shia Muslim of Hazara ethnicity. The applicant alleged his father was a member of the Hizbe Wahdat party and that when he was a child his father was in a trench fighting when a shot was fired from the trench and killed a man from the Hizbe Harakat party. The applicant’s father was blamed for the killing and as the applicant became older his mother advised him several times that he should leave Afghanistan as she feared he would suffer retribution for this event.
The applicant also alleged that in 2012, when travelling on the road between Sange-e-Masha and Ghazni City he was stopped by the Taliban and threatened on the basis that he had been transporting government officials. The Taliban told the applicant that if he was seen travelling one more time on the road his head would be cut off or they would take him away. The applicant took the threat seriously and within one month of being stopped by the Taliban the applicant left Afghanistan for Pakistan. The applicant believed that the targeting by the Taliban arose because the Hizbe Harakat party had made a false report about him to the Taliban.
The applicant also claimed to fear harm on return to Afghanistan that he will be harmed by the Taliban because of his Hazara ethnicity, his Shia religion, the retribution being sought for his father’s involvement in killing a man from the Hizbe Harakat party, the threats made towards him by the Taliban, and as a returned failed asylum seeker from a Western country.
The applicant provided two statutory declarations in support of his application for a protection visa, the first dated 21 March 2016. That statement referred to the applicant’s fear that the Taliban will kill him if he returns to Afghanistan, as well as a fear that the Hizbe Harakat party would discover his identity if he were to go to Kabul. The applicant provided a further statutory declaration dated 24 January 2016, in which he referred to having a fear that he would be killed or significantly harmed by the Taliban or Daesh for an imputed political opinion as his father was a member of the Hizbe Wahdat party and had killed a man. The applicant also claimed that he feared harm from the Taliban or Daesh because of his Hazara ethnicity and/or his Shia religion, as well as retribution from the Taliban for the killing of a person by his father from the Hizbe Nehazt political party. The applicant referred to fearing harm by the Taliban or Daesh for his Hazara ethnicity and/or Shia Islam religion and/or imputed political opinion as a Shia Hazara. The applicant also claimed to fear harm by reason of being a failed asylum seeker from the West in respect of harm from the Taliban or Daesh.
The applicant also referred to fearing harm from the Taliban or Daesh because he had been living in a Western country. The applicant’s statement addressed the Ghanzi province as well as addressing anti-government insurgent groups, including the Taliban, Islamic State in Khorasan and other militant groups. That statement referred to the withdrawal of troops and the attacks on Hazaras and Shias and it being unclear whether the actions were motivated by predominantly anti-Shia sentiment, or whether they were more politically aimed at Shia Hazaras for their imputed anti-Islamic and anti-Taliban politics. The applicant claimed in the statement that he feared he would be attacked as a Shia Hazara by the Taliban, Daesh or other militant groups. The applicant alleged the government was incapable of protecting anyone and that there were many Pashtun men in positions of authority who are reluctant to protect Shia Hazaras from the Taliban.
The delegate
On 6 February 2017, the delegate found the applicant failed to meet the criteria for the grant of a protection visa. In the course of the delegate’s reasons, the delegate referred to Department of Foreign Affairs and Trade (“DFAT”) country information in relation to discrimination on the basis of ethnicity and the reference to Hazaras being active in the Afghan community but that there is evidence of societal discrimination at a community level. The DFAT country information cited by the delegate also referred to people from all ethnic groups being at risk of violence from anti-government elements but that no particular group is systemically targeted solely on the basis of ethnicity with primary targets for insurgent attacks being government institutions, political figures, Afghan National Defence and Security Forces (“ANDSF”), Mission Resolute Support, other security services, international organisations and diplomatic representatives of some countries.
The delegate accepted that there was some societal discrimination on the basis of ethnicity, which DFAT described as nepotism in favour of particular ethnic and religious groups. Reference was also made by the delegate to the fact that the applicant had not been directly associated with any of the groups who are targets for insurgents and does not have an imputed profile as a government affiliate which would likely bring him to adverse attention. The delegate referred to there being no evidence to indicate the applicant’s return to a particular location would bring him to the adverse attention of insurgents or that he would be imputed with an adverse profile as a government affiliate due to his ethnicity.
The delegate also referred to DFAT country information about the legal position and interests of Shias being largely respected, although that there is some societal discrimination at a local level usually in the form of a positive preference for members of one’s own family, tribal or ethnic group. The delegate referred to country information that Daesh is attempting to inject sectarian violence into the Afghan conflict and made reference to there being no declaration of responsibility by Daesh or any other group in relation to a particular attack in a particular location. The delegate was not satisfied that the incidents referred to by the delegate in or near a particular location, indicate that the applicant faces a real chance of persecution as a Shia Hazara upon return to that particular location in the reasonably foreseeable future.
In the context of considering complementary protection, the delegate also referred to the country information indicating that although there is no evidence of official policy of discrimination on the basis of religion or ethnicity, there is some societal discrimination at a community level usually in the form of nepotism within ethnic and religious communities. The delegate noted that according to DFAT, the discrimination is primarily as a result of the important role played by ethnic, tribal and familiar networks in Afghan society and dominance of particular religious groups in many areas. The delegate referred to accepting that the applicant may be subject to nepotism and poor living conditions but did not accept the nepotism or subsistent living standards would constitute significant harm. The delegate was not satisfied the applicant would be subjected to significant harm due to generalised violence in a particular location.
The Authority
On 8 February 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. Further submissions and material were provided by the applicant’s migration representative dated 3 March 2017 and 7 March 2017. Those submissions were referred to in detail by the Authority after referring to the background to the visa application and having regard to the material given by the Secretary under s 473CB of the Act.
The Authority dealt with what was or was not new information in the application, under s 473DD of the Act to the new information and relevantly had regard to psychiatric reports for the applicant dated 22 March 2017 and 19 May 2017. The Authority found the applicant’s evidence to be vague and inconsistent in important respects. The Authority recognised that cumulatively the applicant’s psychiatric reports and submissions provided some explanation for these inconsistencies. The Authority however, was not satisfied they sufficiently explained all of the discrepancies in the applicant’s evidence.
The Authority was not satisfied the applicant’s claims regarding his father’s involvement in the Hizb-e Wahdat party and subsequent threats of revenge were true. In reaching that finding, the Authority had regard to the inconsistencies in the applicant’s evidence, the lack of detail provided by the applicant at the protection visa interview and the fact that the claim was not made by the applicant at his entry interview. The Authority also considered the revenge claim to be far-fetched.
The Authority accepted the applicant was stopped by the Taliban on one occasion while he was travelling between particular locations and was accused of transporting government officials and threatened by the Taliban. The Authority however, considered this to be an isolated event. The Authority did not accept the Taliban asked for the applicant’s details, such as whether he was Hazara, or took his photograph. The Authority found the applicant’s evidence in this regard was unconvincing because of the timing of the claims and the fact that they had not been raised at the entry interview or in either of his first or second protection visa statements. The Authority was not satisfied the applicant would be identified by the Taliban on return to Afghanistan and consequently was not satisfied that the circumstances of this past event gave rise to a well-founded fear of harm.
Having taken into account the country information, the Authority did not accept that Hazara Shias or those returning from Western countries face a real risk of relevant harm in the applicant’s home district. The Authority referred to country information indicating that road travel in Afghanistan presents risks. However the Authority was not satisfied the applicant faced a real chance of harm on the road on the basis of being Hazara, having spent time in the west, because of an actual or imputed profile or for any other reason.
The Authority was satisfied the applicant would be able to safely access his home area via Kabul and Bamyan airports and via road to his home district. The Authority accepted that civilians have been victims of attack as a result of generalised violence in Afghanistan. The Authority however, was satisfied that any chance of harm on this basis would not be on account of the applicant’s race or religion but as a consequence of the risks faced by the population generally and not the applicant personally. The Authority found the applicant failed to meet s 5J(1)(a) and s 5J(4)(a) of the Act.
In relation to generalised violence, the Authority accepted that low-profile citizens can be victims. However on the basis of country information before the Authority, the Authority was satisfied that the chance the applicant may face in relation to generalised violence would also not be for the essential and significant reason of his race, religion, nationality, membership of a particular social group or political group, but rather as a consequence of the ongoing insurgency and insecurity present in and around particular locations and in the country overall.
The Authority referred to having considered the applicant’s claim separately and cumulatively and was satisfied the applicant would not face a real chance of persecution from the Taliban or any other anti-government elements (“AEGs”), or any other group or person on return to Afghanistan on any of the bases claimed.
The Authority found the applicant did not meet the requirements of the definition of refugee in s 5H(1) of the Act. The Authority found the applicant failed to meet the criteria under s 36(2)(a) of the Act.
A fair reading of the Authority’s reasons reflects a typographical error in paragraph 77 in the omission of the word “not”. It is clear on reading the paragraph in the context and with the reasons as a whole that this was a typographical error and that the Authority did not accept that the applicant would face real chance of persecution from the Taliban, or any other AEGs, or other group or person on return to Afghanistan on any of the bases claimed. No jurisdictional error arises by reason of that typographical error.
The Authority turned to the issue of complementary protection and made express reference to the findings that had been made. It was in that context that the Authority found that there are not substantial grounds for believing that, as a necessary or foreseeable consequence of the applicant being returned from Australia to Afghanistan, there is a real risk the applicant will suffer significant harm. The Authority found the applicant failed to meet the criteria under s 36(2)(aa) of the Act and affirmed the decision under review.
Before this Court
The grounds in the application are as follows:
1. The IAA failed to address particular claims or an integer of particular claims made by the applicant.
Particulars
(i) The IAA failed to deal with a claim, clearly arising on the review material given to it, that the applicant would face a real chance of harm on account of societal discrimination against him by reason of his religion or ethnicity.
(ii) The IAA failed to address the applicant’s express claim to fear persecution from Islamic State or Daesh.
2. The IAA failed to consider medical evidence which was relevant to its complementary protection assessment.
Particulars
(i) The IAA in its reasons for decision:
a. Accepted that medical reports about the applicant’s psychological and cognitive ability provided a diagnosis and treatment regime that may impact on an assessment of the applicant’s claims (at [23]), but
b. Only considered this material against s 5J(1)(a) of the Act (at [31]).
Ground 1
In relation to ground 1(i), Mr Tully of counsel for the applicant, submitted that there was a claim or integer of a particular claim made by the applicant that he feared harm on account of societal discrimination that was not the subject of an express finding by the Authority. Mr Tully referred to the references to societal discrimination, as referred to above in the delegate’s reasons, as well as to the reference to discrimination in the delegate’s reasons, and also referred to the applicant’s statements specifically in relation to the government not being able to protect the applicant.
Mr Tully referred to the decision in this Court in EII17 v Minister for Immigration & Anor [2018] FCCA 527 (“EII17”) at [22] and [51]. The Court accepts that in determining whether a claim fairly arises on the material before the Authority, it includes consideration of the delegate’s findings and reasons. In the present case, no claim was advanced by the applicant expressly to fear harm on account of societal discrimination. Rather the claim was to fear harm on account of his religion and ethnicity. That claim was clearly the subject of consideration and adverse dispositive determination by the Authority.
I do not accept that the reference by the delegate to societal discrimination gives rise to circumstances where a claim arose in respect of which the Authority had to consider what the applicant has reformulated as the chance of harm on account of societal discrimination against him by reason of his religion and ethnicity. It is apparent that the Authority did consider the applicant’s claim to fear harm by reason of his religion and ethnicity. The applicant claimed generally to face persecution and significant harm on the basis of his religion and ethnicity. Whilst the delegate used the phrase “societal discrimination”, the delegate did so within the context of the applicant fearing harm in Afghanistan due to religion and ethnicity and his medical circumstances in Afghanistan in relation to being able to safely live within Afghanistan, including Kabul, taking into account country information.
The reference to there being some societal discrimination on the basis of religion and ethnicity by the delegate does not give rise to there being, in the circumstances of present case, a claim or integer by the applicant that fairly arises on the material before the Authority that the applicant claimed to fear harm on account of a societal discrimination against him by reason of his religion and ethnicity. No such separate claim arose.
On a fair reading of material before the Authority, the Authority did address and made dispositive findings as to the chance of harm to the applicant on account of his religion and ethnicity. In these circumstances, there is no requirement for the Authority to make an express finding in relation to societal discrimination.
The Authority considered whether the applicant would face persecution on return to his home region for being Hazara and/or a Shia Muslim. The Authority found the applicant would not face a real chance of serious or significant harm on this basis on return to his home region. The Authority considered that the applicant would have the capacity to earn a livelihood and subsist on his return. The Authority found the applicant could reside in his family home and recommence work on his family’s land or pursue work opportunities in Ghazni City where he had previously been employed. The Authority found, on the information before it, that the applicant would not be denied or unable to access medical treatment on account of his ethnicity or religion. No jurisdictional error as alleged in ground 1(i) is made out.
In relation to ground 1(ii), the applicant alleged that the Authority had failed to consider the applicant’s claim to fear harm from Islamic State or Daesh. It is apparent from the applicant’s statement that the applicant’s claim to fear harm from government insurgent groups, including Taliban, Islamic State and Khorasan and other militant groups, was addressed in combination by the applicant in his statement dated 24 January 2017. The Authority’s reasons expressly referred to the Taliban. The Authority summarised the applicant’s claims at paragraphs 27. Mr Tully of counsel submitted that the absence of express reference to Islamic State or Daesh was of significance. I do not accept that submission. The Authority’s reasons are not to be read with a keen eye for error. The Authority’s reasons clearly refer to the targeting of Hazaras on the roads in part due to their religious or ethnic background and referred to country information that the motivations are to target those with connections to the government or international community.
The Authority was satisfied the applicant’s connections to the West and international community are limited and are overall short in duration. The Authority was not satisfied that arising from these factors the applicant will demonstrate any behaviours that would connect him to the West or indicate that he has lived outside of Afghanistan. The Authority was not satisfied the applicant would be imputed to have an opinion or profile connected to the government, the West or international community or considered a western spy or infidel. The Authority did not accept that the applicant would have such an opinion or profile on return. The Authority was not satisfied the applicant faced a real chance of harm on the basis of the time he spent in the West, or actual or imputed profile connected to the government, the West or international community on the roads in and around the Hazarajat. The Authority was satisfied there is no more than a remote chance of the applicant being harmed in generalised violence on return to his home region or around the Hazarajat.
The Authority was not satisfied the applicant faces any chance of harm and was satisfied any chance of significant harm the applicant may face in relation to generalised violence would not be for the essential and significant reason of his race, religion, nationality, membership of a particular social group or political group. The Authority in referring to having considered the applicant’s claims, was satisfied the applicant would not face a real chance of persecution from the Taliban or any other AEGs, or any other group or person on return to Afghanistan or on any other bases claims.
There was no failure by the Authority to consider the applicant’s claims in relation to harm from anti-government insurgent groups, including Taliban, Islamic State and other militant groups, including Daesh. The reference to “any other group” was clearly a reference to the same topics as had been raised by the applicant in his statement. The reference by the Authority to AGEs was clearly a reference to anti-government elements, which included armed groups as referred to by the delegate in the delegate’s reasons. The reference to AGEs clearly includes Islamic State and Daesh. There was no failure by the Authority to address the applicant’s claimed fear of harm from anti-government elements, including Islamic State and Daesh. The Authority expressly considered the applicant’s claim to fear harm from the Taliban and other insurgent groups as well as the risk to the applicant due to generalised violence and the security situation in Afghanistan. The Authority found that the country information did not support that the applicant’s claim gives rise to a real risk of harm on this basis. No jurisdictional error as alleged in ground 1(ii) is made out.
Ground 2
In relation to ground 2, Mr Tully submitted that the Authority had failed to take into account the applicant’s psychological and cognitive condition in determining whether or not the applicant met the criteria for complementary protection. The findings by the Authority in relation to the applicant’s psychological and cognitive ability, identified in paragraphs 30 and 31 of the Authority’s reasons, clearly reflect the Authority taking into account those conditions and concluding that the applicant would not be denied or unable to access medical treatment or services in Afghanistan. That was a finding that the Authority was entitled to make on the material before the Authority and was not unreasonable or illogical. On a fair reading, that is a finding which the Authority took into account in its adverse finding in respect of complementary protection.
Mr Tully sought to rely upon what was said in a submission dated 29 March 2017, at page 189 – 190 of the Court Book, to the Authority referring to the applicant’s psychiatric and cognitive vulnerabilities and that the applicant could not safely return to Afghanistan and that there was no area in Afghanistan that was suitable for a person of his vulnerabilities, let alone areas without family support, and advanced that he would be killed or significantly harmed as a vulnerable person if returned to an unfamiliar location. The Authority’s findings took into account the applicant being returned to his home region and it was not necessary for the Authority to repeat its findings. A fair reading of the Authority’s reasons reflect the Authority taking into account the findings made under the Refugee Convention in relation to the determination of the applicant’s claims for complementary protection. It was open to the Authority to do so. There was no failure by the Authority to consider the applicant’s psychological and cognitive ability as alleged in ground 2. Ground 2 fails to make out any jurisdictional error.
Conclusion
As the application fails to make out any jurisdictional error accordingly, the application is dismissed.
I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Judge Street
Date: 6 July 2018
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