FZF18 v Minister for Immigration
[2020] FCCA 830
•11 February 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| FZF18 v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 830 |
| 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.36(2B) |
| Cases cited: MZACX v Minister for Immigration and Border Protection [2016] FCA 1212 |
| Applicant: | FZF18 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS AND ANOTHER |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | PEG 616 of 2018 |
| Judgment of: | Judge Vasta |
| Hearing date: | 11 February 2020 |
| Date of Last Submission: | 11 February 2020 |
| Delivered at: | Perth |
| Delivered on: | 11 February 2020 |
REPRESENTATION
| Solicitors for the Applicant: | Morris, Alexander & Nelson Barristers And Solicitors |
| Counsel for the First Respondent: | Ms S. Oliver |
| Solicitors for the First Respondent: | Sparke Helmore |
ORDERS
That the name of the First Respondent be amended to read “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.
That the Applications filed 16 November 2018 and amended on 28 January 2020 are dismissed.
That the Applicant pay the costs of the First Respondent fixed in the sum of $6,500.
IT IS NOTED:
A. That the Court will not provide a written version of the reasons for judgment delivered today, unless an appeal has been lodged and the Court has received a request in writing from either party seeking that written reasons be produced.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 616 of 2018
| FZF18 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS AND ANOTHER |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
(Ex tempore)
On 19 October 2018, the IAA affirmed a decision not to grant the Applicant, FZF18 a protection visa. On 16 November 2018, the Applicant filed an application in this Court asking this Court to review that decision.
The background to this decision is this: the Applicant is a Sunni Muslin of Pasthun ethnicity from the Amadi Kale village in the Alli Kale district of Paktia Province in Afghanistan. His education was home-schooling from his father, and he speaks only Pashto, and says that he cannot read or write in any language.
He ran his own business of auto electrics, I should say, in the Cosh Kali Village bazaar, and some of his work included fixing the electorate and police military vehicles. He had an extended maternal cousin, whom I will call Z. Z apparently had ties to the Taliban and was jealous that FZF18 was successful in his business. The Applicant said that in 2012 Z arranged for him to receive a threatening letter from the Taliban warning that he was assisting infidels, and therefore his death would be justifiable if he continued assisting Afghan Police.
About three or four months after receiving this letter, the Applicant said that he was asked by the local police to fix one of their vehicles. They took him to where the vehicle was and he repaired it. Later that night, the Taliban came to his house asking for him, and his mother opened the door and told them that only ladies were at home. The Taliban left and the Applicant was able to escape via a backdoor to his uncle’s house, which was next door.
The Applicant said that he stayed at a friend’s house that night. He then left the next day to travel to his brother-in-law’s house in Peshawar, and this brother-in-law helped him to travel to Australia.
He is of the view that, if he returns to Afghanistan, the Taliban will kill him, and that nowhere in the county is safe for him, and he says that he will also be targeted because he will be a failed asylum seeker and be accused of being a spy for westerners.
The IAA thoroughly assessed all of these claims. The IAA noted that the Applicant said that his family were now residing in Peshawar. The IAA also noted that the Applicant’s general knowledge about social media, the fact he has a Facebook account, and his ability to run a business in Afghanistan seemed to be at odds with his claim to be uneducated and illiterate.
The IAA said that the Applicant gave a plausible and detailed account of the work that he did in Afghanistan, and the country information was that the Taliban had openly targeted Afghans who were perceived to be working for or supporting the government or international community. Such targeting can include intimidation, threats, abduction and targeted killings.
The Applicant had said in his statement that the cousin, Z, had assisted the Taliban in the past to harm the Applicant and his family. When asked, at interview, to give examples of how Z had done this, apart from the incident that is central to this application, the Applicant could not name any other harm that Z had caused to befall his family. The IAA noted that if Z was jealous of the business success, then Z has already achieved the aim that he had, because the Applicant lost his business and left the area.
The IAA considered that the lack of action by Z, or persons associated with him, to harm anyone else in the family since that time supported a conclusion that the targeting of the Applicant was merely opportunistic. Whilst the Applicant said that his family had relocated to Pakistan, the IAA noted that they have returned to the local area at different times to obtain tazkiras, and that other relatives remain in the province, especially the uncle who lived next door.
The IAA noted that this fact was at odds with any claim that they were still scared to go to that area. The IAA, though, accepted that if the Applicant returned to his home area, he may be remembered by neighbours. If he had run a successful business in the past, he may be remembered for that, and it is not implausible that local members of the Taliban may remember targeting the Applicant in 2012 for the work he did at the time.
If that happened, it was not implausible, the IAA said, that they may show interest in the Applicant again as someone who had left but had returned after being targeted by them. If it is that they remember that the Applicant may have been working for the military and the police, this may still make him a target.
Those considerations caused the IAA to accept that his chance of harm is more than remote in the home area. It then meant that the IAA had to look at whether the real chance of persecution related to all areas of Afghanistan.
The IAA then looked at what reach Z may have. The Applicant had suggested that Z could get the Taliban to track the Applicant down anywhere in Afghanistan. Whilst that was a submission that was made, the IAA noted that such action suggested a nefarious motive which did not seem to be supported by any action that has happened since the Applicant left, and such a claim was mere speculation.
The IAA considered the Applicant being pursued and harmed in Kabul by Z is too remote to amount to a real chance. The IAA considered whether the Applicant may be targeted by the Taliban or other extremist anti-government groups in Kabul. In its consideration, the IAA looked at a lot of country information, especially DFAT reports.
The IAA did not accept that the Applicant had a profile that would cause the Taliban to be looking for him for more than five years after he had left the area, or that they would be aware of his return to Afghanistan outside of his home area. The IAA did not accept that the Applicant was of sufficient interest for the local Taliban to pursue him to Kabul, and so were not satisfied that he faces a real chance of harm in Kabul by the Taliban or by any other groups.
The IAA noted the situation in Kabul, and noted that they could not guarantee that the Applicant would not be inadvertently caught up in a suicide bombing or another violent act, but, in a city of five million people, such was too low to amount to a real chance.
The IAA looked at the claim that there could be harm because of the Applicant being a failed asylum seeker and western returnee, but again, looking at country information, the IAA did not accept he would have a profile as a western returnee or a failed asylum seeker in Kabul, and therefore did not accept he faces any real chance of harm.
Considering all of the claims cumulatively, the IAA did not accept that there was a real chance of persecution in Kabul, therefore the Applicant did not meet the requirements of the refugee criteria.
The IAA then looked at the complementary protection assessment criteria, and noted that what the provisions of s.36(2B) of the Migration Act 1958 (Cth) (“the Act”) provided. The IAA said, at paragraph 35:
35. I have considered whether it would be reasonable for the Applicant to relocate to an area where there would not be a real risk of significant harm.
The IAA looked at the claims that the Applicant had made as to the reasonableness of relocation, and came to the conclusion that in all of the circumstances, they were satisfied that it was reasonable for the Applicant to relocate to Kabul, where he does not face a real risk of significant harm. Having come to that conclusion, the decision of the delegate was affirmed.
There is only one ground to this application; that is, the IAA made a jurisdictional error by failing to consider the general security situation in Kabul for the purposes of the reasonableness of relocation.
In this respect, the Applicant and the Minister are ad idem as to the legal test – that is, what where the two issues that the IAA had to consider as far as relocation? They were, firstly, whether there was a real risk that the Applicant would suffer significant harm if he relocated to Kabul, and then the second, if not, whether it was reasonable for the Applicant to relocate to Kabul.
Both the Applicant and the First Respondent have submitted that one must look at the reasons as a whole, but it must be able to be illustrated that there was a consideration of whether the Applicant would suffer significant harm if he relocated to Kabul, and then secondly, whether it was reasonable for him to relocate to Kabul.
The Applicant has relied on submissions that were made to the delegate. Those submissions, in a fairly lengthy document, begin at court book 94. At court book 101, the submission is made, at paragraph 31, by the Applicant:
31. Kabul is not a safe or reasonable area for (applicant) to relocate to. Although comparatively safer than some areas in Afghanistan, Kabul continues to be marred by insurgent attacks, violence and sectarian contention. The continuing influence of Taliban in Kabul poses a significant threat to (the applicant) life and security placing him in grave danger if he were forced to return.
Those submissions were then followed by submissions as to what life was like in Kabul. Those submissions, though, related to the refugee criteria. In submissions that related to complementary protection, the Applicant has said this at paragraph 41 of those submissions:
…We submit in Kabul City, violence has occurred both before and after the dates of reports. We submit that the DIBP should deem it imperative that ongoing violence must not exist in a region in order to deem it safe for relocation. The safety threshold must remain of a high standard for any ample relocation assessment.
The submissions go further, then, at paragraph 44, where it is said:
44. We further submit that internal relocation is unreasonable in the particular circumstances.
The submission then continues to talk about his limited ability to find work, the economic aspect, and then there is a reference to what is said in MZACX v Minister for Immigration and Border Protection [2016] FCA 1212:
The fact that the risk of harm may be remote does not necessarily answer the question whether it is reasonable, having regard to the personal circumstances of the applicant, to expect the applicant to face that risk. The Tribunal was obliged to consider the practical realities for the applicant in determining whether it is reasonable to expect him to relocate.
The submission then says:
We believe it is not practical for applicant to relocate to another area of Afghanistan due to two reasons.
Firstly, applicant will be required to return to Paktia to take his family with him and relocate to another area. As it is evidenced that applicant will face risk in his home town of Paktia, it is logical to conclude that his return to Paktia and subsequent travel back from Paktia will be dangerous and there is no assurance he will make these trips.
Secondly, as applicant stated in SHEV interview, that he will need to have stable accommodation and a job to protect and provide for his family.
It was then submitted:
We submit it is neither reasonable nor practical for the Applicant to relocate to Kabul or any other major city in Afghanistan…
The submission closed with this paragraph, number 50:
With evidence of deteriorating security and increasing violence and attacks by militants in Kabul, it is clear that the chances of the Applicant being seriously harmed or killed are not remote, and as such, relocation to Kabul or anywhere else in Afghanistan is not a feasible or reasonable option for the Applicant.
In deciding or answering those claims, I have already referred to what the IAA said at paragraph 35; that is, that it has considered whether it would be reasonable for the Applicant to relocate to an area where there would not be risk of significant harm. That is a proper summation of the test.
I will read paragraphs 36, 37 and the beginning of 38 into the record. Paragraph 36:
36. At the interview, when the delegate put to the applicant she would be considering relocation to Kabul, he said it would not be safe for him there. I have found the applicant does not face a real chance of harm from the Taliban, or any other group, in Kabul for any of the reasons claimed. ‘Real chance’ and ‘real risk’ has been found to equate to the same threshold. For the reasons given above, I find the applicant does not face a real risk of significant harm in Kabul.
37. The representative provided country information on incidents of targeted and random violence in Kabul. He submits that ongoing violence must not exist at all in a region in order to deem it safe for relocation. I do not accept this is the test. The test is whether there is an area of the country where there is not a real risk he will suffer significant harm. For the reasons given above, I find the applicant does not face a real risk of significant harm in Kabul for any of the reasons he claimed or because of the general security situation.
38. I have considered whether the applicant could reasonably relocate to Kabul. In submissions to the delegate the representative submitted it was not reasonable for the applicant to relocate within Afghanistan because it would be hard for him and his family to subsist…
The Applicant submits that what the IAA has done is look at the two aspects: that is, is there a real risk of significant harm, and then looked at whether it was reasonable to relocate. The Applicant submits that what the IAA did at paragraphs 36 and 37 was looking at whether there was a real risk of significant harm, and then after that, in paragraph 38, looked at whether it would be reasonable for the Applicant to relocate.
What the submission is, is that the IAA has failed to look at whether it would be reasonable for the Applicant to relocate to Kabul given the general security situation in Kabul. What the Applicant is saying, that whilst it may be that the IAA has talked about whether there would be a real risk of significant harm, the IAA has failed to look at whether it was reasonable to relocate to Kabul given that general security situation.
The Applicant points to the fact that the manner in which the IAA has looked at every aspect is that they have preceded the consideration by saying words to the effect “I have considered”. The Applicant submits that by saying the words “I have considered”, in paragraph 38, it means that the paragraphs that follow from thereon are the consideration that the IAA has made as to whether the Applicant could reasonably relocate.
Whilst there is some attraction in such a submission, it seems to me that such a submission is looking to compartmentalise all of the aspects of the decision-making and put them into little boxes, as it were, rather than looking at the reasons as a whole to see whether or not there had been genuine engagement as to those matters. Just as the Applicant, in his submissions, did not compartmentalise all of his submissions but, to use the Applicant’s words, had a scatter gun approach, it seems to me that when one looks at what it is that the IAA has considered that one must do the same.
Whilst it is that the IAA has found that the Applicant does not face a real risk of significant harm in Kabul, such is only answering the first part of what it is that the IAA must do. Paragraph 37 of the reasons seems to me to be a response to the claims that had been made by the Applicant, because there is a rejection of the submission that ongoing violence must not exist at all in a region in order to deem it safe for relocation, and later on in that paragraph, the IAA repeats that the Applicant does not face a real risk of significant harm in Kabul for any of the reasons he claimed or because of the general security situation.
If that were a reference to only the first part of the test, one wonders why it was said at all, because in the previous paragraph the IAA had already come to the conclusion that the Applicant does not face a real risk of significant harm in Kabul. There was no need to repeat it. It seems to me that paragraph 37 is that answer.
As to whether the general security situation has been addressed, one then looks at paragraph 27, which I will now read in whole. 27:
27. I acknowledge the complex and highly fluid security situation in Kabul and in Afghanistan generally. I note that Kabul had the most civilian deaths (479) in the country in 2017. Most of these were as the result of suicide attacks or deliberate and targeted killings. For the reasons given above, I do not accept however that the applicant faces a real chance of being targeted. Whilst I cannot guarantee the applicant will not be inadvertently caught up in a suicide bombing or other random violent act, I consider his chance of this, in a city of 5 million people, is too low to amount to a real chance. I am not satisfied the applicant faces a real chance of harm due to the general security situation in Kabul.
What the IAA has said in that paragraph is that they have assessed not just whether there is a real risk, but really what are all of the risks to the Applicant regarding the general security situation in Kabul.
When one then goes to paragraph 35, where the IAA has said that they considered the test in paragraph 37 that the Applicant does not face a real risk of significant harm for any of the reasons he claimed or because of the general security situation, it seems to me that there has been an engagement with the second part of the test: that is, whether it is reasonable for the Applicant to relocate to Kabul given the general security situation.
I find that paragraph 42 corroborates this, where the IAA says:
42. I am satisfied in all the circumstances that it is reasonable for the Applicant to relocate to Kabul, where he does not face a real risk of significant harm.
For these reasons, I do not accept that there is a jurisdictional error. I therefore dismiss the application with costs in the sum of $6,500. I will also change the name of the Minister.
I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Judge Vasta
Date: 17 April 2020
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