Fug18 v Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FedCFamC2G 378
•24 December 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
FUG18 v Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 378
File number: ADG 454 of 2018 Judgment of: JUDGE YOUNG Date of judgment: 24 December 2021 Catchwords: MIGRATION - Application for protection visa – where the applicant is a Hazara Shia from Afghanistan - whether the victory of the Taliban since the decision of the IAA is relevant to the question of jurisdictional error – where the IAA identified that the applicant may be at risk travelling between the Hazarajat and Kabul for medical treatment but concluded that travel would not be with “any frequency” - where risk of harm likely to be less than 50% - whether the IAA applied the correctly applied the “real chance” test - jurisdictional error established Legislation: Migration Act 1958 (Cth) Cases cited: EGZ17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 10
DVF18 vMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 135
Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379
Minister for Immigration and Border Protection v SZSCA (2014) 254 CLR 317
Division: Division 2 General Federal Law Number of paragraphs: 30 Date of hearing: 6 December 2021 Place: Darwin Counsel for the Applicant: Mr Aleksov Solicitor for the Applicant: Beena Rezaee Legal & Migration Counsel for the First Respondent: Mr Kay-Hoyle Solicitor for the Respondents: Australian Government Solicitor ORDERS
ADG 454 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: FUG18
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE YOUNG
DATE OF ORDER:
24 DECEMBER 2021
THE COURT ORDERS THAT:
1.A writ of certiorari issue directed to the second respondent quashing the decision of the second respondent dated 2 October 2018.
2.A writ of mandamus issue directed to the second respondent requiring it to determine according to law the application made to it for review of the decision of a delegate of the first respondent dated 12 January 2018.
3.The first respondent is to pay the applicant’s costs, to be taxed if not agreed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE YOUNG:
This is an application for judicial review of a decision of the Immigration Assessment Authority (“the Authority”) made on 2 October 2018 to affirm a decision of the Minister’s delegate made on 12 January 2018 to refuse the applicant a protection visa. The delegate was not satisfied that the applicant faced a real chance of serious harm or a real risk of significant harm upon return to Afghanistan.
The applicant is a man of Shia religion and Hazara ethnicity who was born in the Jaghori district of Ghazni province, Afghanistan. He and his family spent a considerable time in Iran beginning in the 1990s and moved back and forth between Iran and their family village and home in the Jaghori district. The Authority was not satisfied that the applicant faced a real chance of serious harm or a real risk of significant harm if he returned to live in his family village in the Jaghori district.
The applicant's protection claims essentially turned on his claim that he faced persecution as a Shia Hazara in Afghanistan. He said he feared harm from the Taliban and because of a land dispute in his home district. He said those threats of harm led him and his family to move back and forth to Iran to seek safety. The applicant was a person without legal status in Iran and he said that factor led him to come to Australia by boat in 2012.
The Authority, after reviewing country information that was current in 2018, concluded that the Taliban, then insurgents fighting the government, did not target Hazaras because of ethnicity and there was no targeting of Shias in the Jaghori district, where the Hazaras were in the majority. The Authority concluded that the "security situation" in the majority Hazara region of Afghanistan, known as Hazarajat, was better than in other parts of Afghanistan. It concluded that the Jaghori district was largely secure. The Authority accepted that travelling on the roads in Afghanistan was dangerous and may lead to kidnap by the Taliban or other insurgent groups and that Hazaras and Shias may be particularly at risk of abduction. The Authority concluded that medical care in the Jaghori district was poor and accepted that the applicant may need to travel to Kabul for better medical facilities in the foreseeable future. However, the Authority noted that there was no evidence that the applicant presently suffered from any health problems that would require such travel. The Authority accepted that in future the applicant may be required to travel outside of his home area for health reasons but was not satisfied that he "he would be required to do so with any frequency".
The applicant also contended that the Authority did not take into account his claim of having been employed as a taxi driver in Afghanistan and failed to assess whether, having regard to the insecurity of travel on the roads, it was reasonable to expect the applicant to live in the Jaghori district which effectively meant he was unable to pursue his previous livelihood as a taxi driver.
The applicant pressed two grounds of judicial review. The first is:
The decision of the IAA is affected by illogicality, irrationality, legal unreasonableness or some other unidentified error, or the IAA failed to perform a review as required by the Migration Act or the IAA failed to consider a claim made or arising on the materials.
Particulars
(a)When assessing the possibility of the applicant suffering harm whilst travelling on the roads around Afghanistan to access healthcare in the reasonably foreseeable future (Reasons [46]), an activity that was found to be the subject of significant risks of harm, the IAA stated that the applicant would not be required to travel “with any frequency”.
(b)There is no basis in the materials before the IAA, nor in logical (sic) or reason, to support the finding that if the applicant needed to travel, he would not do so “with any frequency”. There is no basis in logic or reason, or in the materials before the IAA, for it to have speculated as to the frequency of any future travel needs.
The second ground is:
The IAA failed to conduct a reasonableness analysis in respect of changes to the applicant's life that it expected of him to ensure his safety in his home region.
This second ground was said to refer to the applicant’s previous occupation as a taxi driver which, it was said, he would not be able to pursue if he were subject to a risk of abduction on the roads.
It is to be noted that there is no reference in the materials to what is now the current situation in Afghanistan following the collapse of the US backed government and the victory of the Taliban. Many, if not all, of the assumptions underlying the decision of the delegate and the Authority no longer apply. The decision of the Authority, made in 2018, is, according to both the applicant and the respondent, to be assessed on the basis of a state of affairs that no longer exists.
Whether the applicant as a Shia Hazara would be at risk of serious harm if he were returned to Taliban controlled Afghanistan is not a matter that has figured in any way in this application for judicial review. That approach is conventional and recognises the proper role of judicial review for jurisdictional error of administrative decisions but it does not address the reality of the applicant's situation. One response open to the applicant is to make a further application to the Minister based on the changed situation in Afghanistan. Similarly, it is open to the Minister to undertake a further assessment of the applicant’s risk of harm based on that changed situation, particularly having regard to the obligation of non-refoulement. Another approach is reflected in the decision of EGZ17 v Minister for Immigration [2021] FedCFamC2G 10 where it was concluded that the change of regime in Afghanistan constituted a jurisdictional fact which must be taken into account. Both the applicant and the respondent submitted that decision was wrongly decided and did not ask me to apply it.
These issues were helpfully considered by Judge Egan in DVF18 v Minister for Immigration [2021] FedCFamC2G 135. It is clear from the authorities discussed by his Honour that a change in circumstances after an administrative decision will not usually provide a basis for asserting jurisdictional error. However, it is not irrelevant and may provide a ground for the applicant to apply to the Minister to consider whether returning him to Afghanistan would constitute refoulement, or return to a place where he reasonably fears persecution, in breach of Australia’s international obligations. Counsel for the Minister gave no indication to me that such consideration was contemplated in this case.
Consideration
Ground 1
The applicant submitted that once the Authority accepted that he may need to travel on the roads to Kabul from his home district in the event that he required medical treatment it was illogical to conclude that such travel did not create a serious risk of harm because it would not be of "any frequency". The applicant said that if there was a risk of abduction in travelling to Kabul in the event that he required medical care then that constituted a serious risk of harm even if the necessary travel was infrequent or only once. This submission, in my view, is not exactly the same argument as raised in the application for review but it was not the subject of objection.
The respondent submitted that on a fair reading of the Authority's decision it conveyed the conclusion that any risk to the applicant was remote. The respondent said that in the absence of evidence of the applicant suffering from any current health condition that would necessitate travel to Kabul the risk of harm from abduction while travelling on the roads was necessarily remote or speculative. Of course, as an aside and to return to the point made above, it would seem likely that such risks as were considered by the Authority, that is, abduction by insurgent Taliban, have disappeared but may have been replaced by entirely different risks. However, that possibility is to be ignored for present purposes.
Section 5H of the Migration Act relevantly defines a person as a refugee
… if the person:
(a)in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country;…
Section 5J relevantly states:
(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:
(a)the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)there is a real chance that, if the person return to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)the real chance of persecution relates to all areas of a receiving country.
…
(4) If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a) that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b) the persecution must involve serious harm to the person; and
(c) the persecution must involve systematic and discriminatory conduct.
(5) Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph;
(a) a threat to the person’s life or liberty;
(b) significant physical harassment of the person;
(c) significant physical ill-treatment of the person;
…
In Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 the High Court discussed the meaning of a “well-founded fear of persecution” and the practical application of the concept of “a real chance” of persecution. Chan was decided before the present legislative provisions were enacted but it remains relevant.
Mason CJ at 389, after referring to various formulations in international jurisprudence such as “a reasonable likelihood” and “a reasonable possibility”, said:
I do not detect any significant difference in the various expressions to which I have referred. But I prefer the expression “a real chance” because it clearly conveys the notion of a substantial, as distinct from a remote chance, of persecution occurring and because it is an expression which has been explained and applied in Australia…
If an applicant establishes that there is a real chance of persecution, then his fear, assuming that he has such a fear, is well-founded, notwithstanding that there is less than a 50% chance of persecution occurring.
Dawson J said at 397 to the same effect:
On the other hand, it is also clear enough that a fear can be well-founded without any certainty, or even probability, that it will be realized.
Toohey J at 407 said of the “a real chance” test that:
It does not weigh the prospect of persecution but, equally, it discounts what is remote or insubstantial.
McHugh J at 429 said:
The decisions in Sivakumaran and Cardoza-Fonseca also establish that a fear may be well-founded for the purpose of the Convention and Protocol even though persecution is unlikely to occur. As the United States Supreme Court pointed out in Cardoza-Fonseca an applicant for refugee status may have a well-founded fear of persecution even though there is only a 10% chance that he will be shot, tortured or otherwise persecuted. Obviously, a far-fetched possibility of persecution must be excluded. But if there is a real chance that the applicant will be persecuted, his or her fear should be characterised as “well-founded” for the purpose of the Convention and Protocol.
The Authority, relying on a DFAT report, was satisfied that road travel was insecure because of insurgents and there was a risk of abduction on the roads for persons of all ethnicities but Hazaras were particularly at risk travelling to and from the Hazarajat. In my view, the chance of an event such as the applicant being abducted, or more likely to be abducted, by insurgents because he is a Hazara while travelling by road from the Hazarajat to Kabul for medical treatment is capable, as a general proposition, of constituting a real chance of persecution. The Authority appeared to recognise this but discounted the likelihood of the applicant needing medical treatment in Kabul because there was no evidence he suffered from any health problems that would necessitate such travel. The Tribunal, nevertheless, concluded:
I accept that the applicant may be required to travel outside of his home area of the Hazarajat for health reasons at some point in the reasonably foreseeable future; however, on the information before me, I am not satisfied he would be required to do so with any frequency.
This sentence, fairly read, acknowledges that the applicant may need to travel outside the Hazarajat for medical treatment at some time in the future. Notwithstanding that the applicant is presently healthy, that acknowledgement recognises common experience that the health of even apparently hale people may deteriorate unexpectedly. Given that acknowledgement, the conclusion that the applicant would not be required to undertake such travel “with any frequency” would appear intended to convey a view that such travel would be infrequent or on few occasions, rather than the applicant will not be required to travel at all.
The chance that the applicant will in future suffer poor health requiring him to travel outside the Hazarajat, with the associated risk, or increased risk, of abduction because he is a Hazara, is impossible to accurately weigh or quantify. However, poor health or the deterioration of otherwise good health is an ordinary human experience. The chance that, if he seeks medical treatment in Kabul, the applicant might be abducted on the road because he is a Hazara may be less than 50%. It may even be much less than 50% but it does not appear to me to be speculative, remote, insubstantial or far-fetched. It is a real chance and accordingly may constitute a well-founded fear of persecution.
In my view, the Authority has misapplied the real chance test in determining whether the applicant has a well-founded fear. I am satisfied this was a jurisdictional error.
Ground 2
This ground was said to relate to the applicant’s claim that he had worked in Afghanistan as a taxi driver. It was said that if he were forced to remain in a safe location such as the Jaghori district or the Hazarajat he would be unable to work as a taxi driver because the roads are unsafe and his ability to subsist would be threatened. It was said the Authority failed to consider the reasonableness of that course.
The applicant submitted that the case is indistinguishable from Minister for Immigration and Border Protection v SZSCA (2014) 254 CLR 317 where the High Court held that the situation of a truck driver who customarily travelled throughout Afghanistan but who was unable to travel because of lack of safety on the roads should be assessed in the same way as an internal relocation, considering whether or not it was reasonable to expect such an internal relocation having regard to the person’s ability to subsist and so on.
The first respondent submitted that in SZSCA the central claim of the applicant was his inability to subsist if he were unable to work as a truck driver. The first respondent said that in this case the applicant did not advance his claim in that way. The first respondent said that while the applicant had in his earlier statements claimed to have worked as a taxi driver this was disbelieved by the delegate and not advanced by the applicant in his submission to the Authority. The first respondent said in the circumstances, the task of the Authority was to assess the applicant's claims as they were advanced.
In his “Statement of Claims” dated 17 July 2013 to the delegate the applicant made a claim that he had worked as a taxi driver, among other occupations. He said that he sold his taxi after he had been threatened by insurgents on the road and had witnessed another taxi being hijacked. The delegate did not accept these claims as truthful, pointing to inconsistencies in the applicant’s narrative, such as an earlier claim that he had worked only as a farmer and his statement that he had not held a driver’s licence. In his submission to the Authority dated 5 February 2018 and a statutory declaration of 7 February 2018 he made no mention of taxi driving. Nevertheless, the Authority noted that the applicant’s claims for protection included claims that:
·After two years in Iran, the applicant returned home and started working as a taxi driver. However, he became scared to work as a taxi driver because there was an incident where a taxi had been taken by the Taliban between Kandahar and Angoori;
·The applicant sold his taxi …
The applicant did not advance his claim as a claim that he could not subsist because he would be unable to drive a taxi if he were forced to remain in the Hazarajat or Jaghori district. No submission of that kind was made to the Authority (or the delegate, as far as I can see). The Authority is not bound to consider a claim that is not expressly advanced or does not reasonably or clearly arise from the materials. I accept the first respondent’s submission. This ground fails.
There will be orders accordingly.
I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Young. Associate:
Dated: 24 December 2021
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