FSA17 v Minister for Immigration

[2018] FCCA 1807

FEDERAL CIRCUIT COURT OF AUSTRALIA

FSA17 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 1807

Catchwords:
MIGRATION –Protection Visa – whether Immigration Assessment Authority’s decision affected by jurisdictional error – where no error established in Immigration Assessment Authority’s decision – application dismissed.

Legislation:

Migration Act 1958 (Cth); s.5J, s.36(2)(a)

Applicant: FSA17

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent:   IMMIGRATION ASSESSMENT AUTHORITY

File Number: BRG 1271 of 2017

Judgment of: Judge Vasta

Hearing date: 29 June 2018

Date of Last Submission: 29 June 2018

Delivered at: Brisbane

Delivered on: 29 June 2018

REPRESENTATION

Counsel for the Applicant: Mr W.J. Markwell

Counsel for the First Respondent: Mr B. McGlade

Solicitors for the First Respondent: CLAYTON UTZ

ORDERS

1. That the Applications filed 21 December 2018, 29 March 2018 and filed by leave on 29 June 2018 be dismissed.

2. That the Applicant pay costs to the First Respondent fixed in the sum of $7,328.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 1271 of 2017

FSA17

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY 

Second Respondent

REASONS FOR JUDGMENT

(Ex tempore)

1. On 7 December 2017, the Immigration Assessment Authority (“the IAA”) affirmed a decision not to grant FSA17 a protection visa.  FSA17 was a citizen of Afghanistan.  He applied for the safe haven enterprise visa in September 2016, and the delegate for the Minister refused to grant the visa on 17 February 2017.  Given that this was a fast-tracked decision, it automatically was referred to the IAA. 

2. In short, the claims of FSA17 were that he was born in Ghazni province in Afghanistan, and he is a Shia Muslim of Hazara ethnicity.  He graduated with a Bachelor of Arts from the Department of Judicial and Prosecutions Faculty of Law and Political Science at the Kabul University in 2007.  In 2008, he commenced working as legal service manager at the Department of Justice in Ghazni City in the Ghazni district.  In March 2009, he was appointed as the manager of Investigation and Registration of Government Trade Permits. 

3. The ground of his claim is that in May 2012, some people came to his office in his official capacity and complained that someone was building on community land, which was owned by the Afghan government near their village.  The Applicant went there, and observed that it had been illegally occupied.  Earthworks had commenced, and the locals told the Applicant that a real estate agent, that I will call N, who was a Pashtu, had been seen at the community land.

4. The Applicant went to the real estate office of N, and there were forged documents discovered there that purportedly showed that N owned the community land; that he had then on-sold the community land to other individuals. So it was evidence of quite a sophisticated fraud. 

5. The Applicant, in his position, then took the forged documents back to his office as part of the investigation.  A letter was sent to N asking him to attend the Department of Justice.  After that letter was sent, N contacted the Applicant by telephone and told him that the Applicant had caused him problems, and that the Applicant had to return the forged documents he had taken.  N told the Applicant that he would not be silent and that he, the Applicant, would pay for what he had done. 

6. Approximately three to four days later, N allegedly attended the Applicant’s family home and asked his mother for his whereabouts.  N then called the Applicant again and threatened him, and told him to return the forged documents.  N told the Applicant that his uncle was a Taliban leader in the Khogyani district, and that next time the Taliban will contact him and he will have to face the consequences. 

7. The Applicant decided then that he should leave Afghanistan, and that he legally left and went to Dubai, and then left Dubai and went to Sri Lanka.  He then left Sri Lanka and went to Singapore, and then he left Singapore and went to Indonesia, and there he paid money to a people smuggler and travelled by boat before being intercepted and taken to Christmas Island.  He then told the story about being scared of N and his Taliban connections, and feared going back to Afghanistan. 

8. The IAA went through the claims that he made about N in a fairly thorough manner.  In the end, the IAA said this at paragraph 31: 

   31. Having regard to all the evidence before me, I am satisfied that the event involving N was an isolated event, which occurred over five years ago, when he was employed as Manager of Investigation and Registration of Government Trade Permits.  The applicant ceased his role with the Department of Justice to avoid the threatened harm and he has not claimed that in the five years since any inquiries or threats have been made by N against him. I am not satisfied that he would be identifiable on return by N as a result of the one encounter over five years ago when the applicant attended N’s office, along with a colleague and the police, or that N would now be interested in the applicant.  I am not satisfied that the circumstances arising from the applicant’s involvement in the investigation give rise to a well-founded fear of harm on return now or in the reasonably foreseeable future.

9. The IAA then went to look at what harm might befall the applicant if he were returned to Afghanistan and to Ghazni because of his ethnicity, and because he had come back from Australia and may be seen by the government as a failed asylum seeker or be seen by other people as a spy or someone sympathetic to Western governments. 

10. The IAA had regard to quite a deal of country information, and performed what I consider to be an extremely thorough assessment of all of those matters, coming to a conclusion on the evidence before it, having regard to the situation in summary, in paragraphs 68 and 69:

    68. In any event, on the basis of the information before me, I am satisfied that any chance of harm the applicant may face in relation to generalised violence would also not be for the essential and significant reasons of his race, religion, nationality, membership of a particular social group or political opinion, but rather a consequence of the ongoing insurgency and insecurity present in the country overall. Accordingly, s.5J(1)(a) and 5J(4)(a) of the Act would not be satisfied.

    69. Having considered the entirety of the applicant’s circumstances, I do not accept there is a real chance the applicant would face serious harm for the reasons he has claimed, either now or in the foreseeable future, if he returns to Ghazni City.

11. Therefore, the IAA concluded that he did not meet the requirements of the definition of refugee.  The IAA then looked at the complimentary protection assessment, and whether there was a real risk that the applicant would suffer significant harm if he was removed from Australia to Afghanistan.  The IAA went through, again, those aspects, and came to the conclusion, at paragraph 76: 

    76. I have otherwise found that the applicant would not face a real chance of harm on the basis of his religion, ethnicity, his past circumstances arising from the isolated event involving N, and/or his former government employment, or other profile included as a spy or infidel and/or arising from having lived in, and sought asylum in, a Western country like Australia. I have also found the applicant would not face a real chance of harm if he seeks to travel on the roads.  Based on the same information, and for the reasons set out above, I am also not satisfied that there is a real risk the applicant would face significant harm for these reasons on his return to Afghanistan.

12. Therefore, the decision was affirmed.  The further amended application which has been filed by leave today has three grounds, and I will deal with them seriatim.  The first ground is:

    1. The Second Respondent has not taken a relevant consideration into account.

    Particular

    1. The Second Respondent has failed to consider a claim of the Applicant under s36(2)(aa) of the Migration Act 1958, namely that the Applicant claimed to fear harm on the basis of the worsening security situation in Afghanistan.

    An Order from the Federal Circuit Court dealing with the ‘worsening security situation in Afghanistan’ and a decision form the Administrative Appeals Tribunal are annexed to an Affidavit of the Applicant’s lawyer, referred to in paragraph 5 below.

13. What Mr Markwell has relied upon is another decision from the Administrative Appeals Tribunal and an order from Judge Howard that remitted a matter back to the AAT by consent.  The notation on that order was this:  

    The Minister conceded that the AAT fell into jurisdictional error on the basis that the AAT failed to consider a claim of the applicant under s.36(2)(aa) of the Migration Act; namely, that the applicant claimed to fear harm on the basis of the worsening security situation in Kabul.

14. The AAT decision was one that was made on 25 May 2018, in which the Tribunal, looking at a matter, remitted the matter for reconsideration, with the direction that the Applicant satisfied s.36(2)(a) of the Migration Act 1958 (Cth) (“the Act”), and that involved a person who was a Hazara Shia Muslim and had come to this country. Obviously, the AAT decision post-dated the IAA decision here and the decision of Judge Howard to remit the matter by consent, was made 18 August 2016, so it did pre-date the IAA decision.

15. What Mr Markwell says is that there needs to be consistency in these cases, so that if a decision-maker comes to the conclusion that there is a well-founded fear of persecution or serious harm to be suffered by a person who is a Shia Hazara in Australia returning to Afghanistan, that such consistency by both the AAT and this Court and the Federal Court needs to be maintained so that there is sufficient confidence within the system. 

16. The problem in that approach is whilst such a sentiment may sound nice and would be fodder for an appeal court, this is not an appeal.  This is a review.  It is a review of what material was before the IAA and an examination of the IAA’s processes to ensure that it complied with the legislative framework that is the basis of its existence. 

17. There is no capacity for this Court to be looking at any matter that was not before the IAA in order to understand whether the IAA has conducted its review properly.  The fact is that one looks at the matters that were before the IAA, and the IAA has actually considered the worsening situation.  The relevant consideration identified by Mr Markwell are decisions of the AAT and of the remitting back by consent made by this Court.  Neither of those matters were before the IAA, and they are quite irrelevant to the proceedings. 

18. There is really no such thing as consistency, because the delegate and the IAA must evaluate each case on its own merits; and having made decisions on the merits as the decision-maker is allowed to do so, it is really whether such a decision is open or not on the evidence before it.  Such considerations as “consistency” are not matters for Courts of review. 

19. Courts of review must look at what material was before the IAA, and then as to whether the IAA has completed its task in the proper way.  Therefore, I do not find that those matters referred to by Mr Markwell were relevant considerations, or could ever be categorised as relevant considerations.  For those reasons, then, there is no merit in ground 1. 

20. Ground Two is that

    2. The Second Respondent has taken an irrelevant consideration into account and a jurisdictional error has occurred.

    Particular

    The Second Respondent has considered discrimination as it appears in Article 22 of the Constitution and is forbidden. This is completely meaningless and is just a ‘motherhood statement’. This is an irrelevant consideration. The Applicant is most likely to be discriminated against because he is a Hazara and therefore part of the society and/or community that he is involved in. Whether the discrimination is societal and not official, is not relevant. What is relevant is that discrimination is societal and not official, is not relevant. What is relevant is that discrimination at the community level is widespread in Afghanistan. The Applicant is less likely to be able to obtain a position in the senior civil service because of his ethnicity, namely that he is Hazara extraction.

21. During the course of the hearing, I asked Mr Markwell what was the mistaken conclusion.  He said to me that the mistaken conclusion was that the IAA came to a conclusion that Hazaras were not discriminated against.  That is not what the IAA had said.  At paragraphs 53, 54, and 55, the IAA said this: 

    “3. DFAT has no evidence of any official policy of discrimination pursued by the government on the basis of ethnicity or religion.  It further states that discrimination faced by Hazara Shias is more likely to be societal in nature, primarily as a result of the important role played by ethnic, tribal, and familial connections play in daily life in Afghanistan and the dominance of the Sunni majority. According to DFAT, ethnic discrimination generally manifests in the form of giving positive preference in favour of one’s own particular family, tribal, or ethnic group, rather than in the form of negative discrimination against others.  Hazaras are active in the Afghan community and participate in local and national governments, institutions of higher education, civil society groups, media outlets, parliament, and political parties. Hazaras are disproportionately represented in schools and in universities they represent the largest group of enrolled students. Although, Hazaras are more likely than any other ethnic group to be excluded from senior civil service positions. 

    54. I accept that as a Hazara Shia, the applicant may be subjected to nepotism and that the reports are that he may be restricted in accessing certain levels of government employment (although this has not been the case in the past for the applicant); however I am not satisfied that this would threaten the applicant’s capacity to subsist or otherwise constitute serious harm. 

    55. I am not satisfied there is a real chance of the applicant being subjected to serious harm in Ghazni city on the basis of his religion and/or ethnicity now or in the reasonably foreseeable future.  

22. Quite contrary to what Mr Markwell had maintained, there was no mistaken conclusion by the IAA.  The statement of fact that DFAT has no evidence of any official policy of discrimination comes straight from the DFAT country report and the DFAT thematic report that Mr Markwell has kindly handed up to me. 

23. There is an actual identification by the IAA that the Applicant is more likely to be excluded from senior civil service positions because of his ethnicity.  The IAA has accepted that there is discrimination against Hazaras, but has come to the conclusion that it would not constitute serious harm.  Such a finding was open to it, therefore, I find there is no merit in ground two. 

24. Ground Three is:

    3. The Second Respondent has reached a mistaken conclusion by stating that the Applicant could take reasonable steps to modify his behaviour, so as to avoid persecution.

    Particular

    The Applicant has a tertiary qualification in Arts and Law from Kabul University. If the Applicant were to obtain a position in the civil service (if discrimination did not prevail, as per Ground 2 above), then the Applicant would not be able to ‘conceal an innate or immutable characteristic’, such as legal training of both theory and practice that he received at both University and in his positions as Legal Service Manager and Manager of Investigation and Registration of Government Trade Permits. Such superior knowledge and training, is in stark contrast to the knowledge and training of the general population, and this would be impossible to conceal.

25. This ground is founded upon what the IAA has said in paragraphs 40, 41, and 42. 

    40. While I have found the applicant does not have a real chance of being persecuted as a former government employee, having regard to the above country information, I accept that the Taliban continues to attack civilians and civilian locations and that those targeted have included government employees.  On the information before me, the applicant is no longer an employee of the Afghan government, nor does he have any offer of such employment and in the five years since he left his government job he has engaged in other forms of employment. There is no information to indicate what work the applicant would in fact do, or seek to do on his return to Afghanistan and I am not satisfied that he will resume government employment on his return to Ghazni City.  However, even if I were to proceed on the basis he would want to seek such employment, I would nevertheless be satisfied that he could take reasonable steps to avoid a real chance of persecution by seeking alternative employment. 

    41. Section 5J(3) of the Act has the effect that an applicant does not have a well-founded fear of persecution if he could take reasonable steps to modify his behaviour so as to avoid a real chance of persecution, other than certain types of modification.

    42. I am satisfied that in the applicant’s case seeking a different type of employment is not prohibited by s.5J(3) of the Act. His evidence was that his tertiary studies were chosen by the Afghan government and his pre-university exam results; and his employment within the Department of Justice arose after he applied for and successfully gained both roles. I am not satisfied that his work is fundamental to his identity or conscience or motivated by political beliefs. I am satisfied that seeking a different type of employment would not involve concealing an innate or immutable characteristic, such as having worked in roles with the Afghan government in the past, and that the modification does not fall within any of the other categories under s.5J(3)(c). 

26. What Mr Markwell has argued is that the Applicant has a tertiary qualification in Arts and Law from Kabul University.  If the Applicant were to obtain a position in the civil service (if there were no discrimination), then the Applicant would not be able to conceal an innate or immutable characteristic such as legal training of both theory and practice that he received at both university and in his position as legal service manager and manager of Investigation and Registration of Government Trade Permits.  Such superior knowledge and training is in stark contrast to the knowledge and training of the general population, and this would be impossible to conceal. 

27. This submission really comes from a mistaken reading of the last sentence of paragraph 42.  There, the IAA said: 

    …I am satisfied that seeking a different type of employment would not involve concealing an innate or immutable characteristic, such as having worked in roles with the Afghan government in the past…

28. This is an acceptance by the IAA that what the Applicant can do is this: that if he feared that the Taliban would target him as a government employee, then he could take reasonable steps to ensure that he was not a government employee.  That is, he could seek work somewhere else. 

29. The IAA is not saying that, in doing something like that, the Applicant has to, or should be concealing the fact that he had worked in Afghan government roles, or that he is a person of learning and does have degrees.  In fact, the IAA is saying exactly what Mr Markwell is submitting the Applicant should be allowed to do. 

30. The IAA has said that the Applicant could do this, so there is no evidence before me, at all, that the Applicant would have to conceal, in any way, what his past was or the fact that he had been learned in education to ensure that he does not work with the government.

1. Therefore, s.5J(3) does not really come into consideration in this matter.  If it does not come into consideration, then there is no concern at all that the IAA has asked the incorrect questions.  It seems to me as though the IAA has done so, and again, there is no merit in that ground. 

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Judge Vasta

Date: 23 October 2018