SZSJB v Minister for Immigration

[2016] FCCA 1748

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZSJB v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 1748

Catchwords:
MIGRATION – ITO Assessment – non-refoulement obligations – whether the assessor failed to take relevant considerations into account – whether the assessor asked the wrong question – whether the assessor misapplied the relevant law – no jurisdictional error identified – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.91A, 474, 476

Cases cited:
MZYQU v Minister for Immigration and Citizenship & Anor [2012] FCA 1032

Applicant: SZSJB

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: K NAYLOR IN HER CAPACITY AS INTERNATIONAL TREATIES OBLIGATIONS ASSESSOR

File Number: SYG 557 of 2016

Judgment of: Judge Street

Hearing date: 12 July 2016

Date of Last Submission: 12 July 2016

Delivered at: Sydney

Delivered on: 12 July 2016

REPRESENTATION

Counsel for the Applicant: Mr C Jackson

Solicitors for the Applicant: Labour Pains Legal

Counsel for the First Respondent: Mr M Smith

Solicitors for the First Respondent: Australian Government Solicitors

ORDERS

1. The application is dismissed.

2. The applicant pay the costs of the first respondent fixed in the amount of $6,825.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 557 of 2016

SZSJB

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

K NAYLOR IN HER CAPACITY AS INTERNATIONAL TREATIES OBLIGATIONS ASSESSOR

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for declaratory relief in relation to an ITO assessment dated 18 May 2015 which is accepted falls within s.474(3) and accordingly within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth).

2. The applicant was found by the assessor to be a citizen of Afghanistan and the assessor’s report was undertaken for the purpose of assessing whether Australia has a non-refoulement obligation to the applicant under the 1951 Refugee Convention relating to status of refugees as amended by the 1967 Protocol Refugees Convention, the Convention Against Torture or Other Cruel, Inhumane or Degrading Treatment or Punishment, or the International Covenant on Civil & Political Rights (ICCPR) and its second Optional Protocol aiming at the abolition of the death penalty. 

3. The assessor took into account the provisions of the Migration Act 1958 in assessing the non-refoulement obligations that might be owed by Australia to the applicant.  The applicant arrived in Australia as an illegal maritime arrival on 11 January 2010 at Christmas Island.  In summary, the applicant fears persecution by reason of being Hazara Shia from a particular location and fears persecution from the Taliban. 

4. The assessor identified the applicant’s claims in detail and referred to the applicant’s submissions that were received prior to the interview that was conducted on 3 March 2015 in which the applicant was given an opportunity to advance evidence and submissions in relation to his claims. At that interview, the applicant was represented by his migration agent and had the benefit of an interpreter.  The assessor also referred to the post-hearing submissions and identified reasons for adverse credibility findings in relation to certain of the applicant’s claims. 

5. Relevantly, the assessor did not accept that the Taliban had an interest in the claimant or that the claimant was threatened as he alleged by the Taliban in a particular location or at his house.  The assessor did not accept that the claimant had been asked by the Taliban to be an informant or that the claimant and his family were spied on by Hazara informants or that they were accused of hiding weapons.  The assessor did not accept that the applicant’s father was kidnapped by the Taliban or that if he returns, they will seek revenge. 

6. The assessor did not accept that the applicant was on the Taliban blacklist or that the applicant would be targeted by the Taliban or other insurgent groups as a result of the identity verification process.  The assessor did not accept that the claimant’s arrival in Afghanistan would be reported by the Tajiks or Pashtuns to the Taliban, nor did the assessor accept the applicant’s claims of fear of the Tajiks. 

7. The assessor did however accept that the applicant’s chance of being harmed in a persecutory manner travelling on particular roads could not be dismissed as insubstantial and had to be considered as real based cumulatively on his race, religion and imputed political opinion against the Taliban.  It was in those circumstances that the assessor found that the applicant had a well-founded fear of harm in relation to return to a particular location in a particular province. It was in those circumstances that the assessor turned to the question of relocation within Afghanistan by the applicant. 

8. The assessor considered relocation by the applicant to Kabul and expressly made reference to the claimant’s assertions that he would not be safe if he returned to Kabul because the Taliban would find him and the Islamic State had distributed letters threatening those who follow the Shia faith.

9. The assessor made reference to raising with the applicant the absence of reports of returnees in Kabul facing any particular harm on account of having spent time living in a western country.

10. The assessor made reference to the applicant’s response that the Taliban is active in Kabul and that the letter distributed by the Islamic State is from the Taliban.

11. The assessor made reference to the fact that she had not accepted that the applicant is of interest to the Taliban and had not accepted the applicant’s claims that they had visited his house or that a particular informant had spied upon the applicant and his family or accused his family of hiding weapons.

12. The assessor made express reference to having considered the migration agent’s assertion that there is not durable safety in Kabul, and also made reference to Professor Naley’s view that the fluent situation in Afghanistan means there is no safety for Hazaris. 

13. The assessor placed weight on a particular statement from a DFAT assessment that it is relatively safe for Hazaris to return to Hazari majority areas relevantly in Kabul.

14. The assessor also made reference to the European country of origin information network in relation to an analysis of attacks by insurgents in Kabul and the conclusion in that report that insurgents targeted Afghan military personnel, police officers, political figures and foreigners, as well as government buildings, hotels and embassies.

15. The assessor noted the reporting supports that it is relatively safe for Hazaris to return to Kabul given that, with the availability of reporting of events in Kabul, there are no reports of Hazaris being targeted on such a level that it would be unsafe for them to inhabit Kabul.

16. The assessor also made reference to having considered the claimant facing harm from the Taliban on account of returning to Kabul from a western country as a failed asylum seeker and made reference to being unable to find reports of returnees in Kabul facing any particular harm on account of having spent time living in a western country or being a failed asylum seeker.

17. The assessor also took into account the October 2014 DFAT report on Kabul and referred to economic issues impacting on some returnees and that the report made no mention of returnees being targeted on account of them spending time in a western country.

18. The assessor referred to a further reported dated October 2014 in relation to the absence of mention of adult returnees facing harm because they are imputed with certain religious or political opinions due to their residence abroad.

19. The assessor made reference to the applicant’s claims in relation to his testimony that changed in relation to the night letter distributed in Kabul from the Taliban and the inability to verify the letter’s authenticity. The assessor specifically referred to considering the threat of Islamic State and the Taliban if the applicant relocated to Kabul.

20. The assessor made reference to the fact that whilst there were reports of the rise of presence of Islamic State in Afghanistan and the foreshadowing of the situation involving Islamic State said to get worse, the reporting does not indicate that in the reasonably foreseeable future Kabul would be unsafe to live in, including for Hazaris who are of the Shia faith because of an inability of the Islamic State to infiltrate Kabul to the extent they would be a viable threat.

21. It was in those circumstances that the assessor found that it would be safe for the applicant to return to Kabul, and then turned to the consideration whether Kabul is a reasonable place for relocation by the applicant. Reference is made by the assessor to the DFAT report noting that Kabul provides the most viable option for many people for internal relocation and resettlement in Afghanistan and that this applied to those internally displaced by conflict and natural disasters, economic migrants and returnees to Afghanistan.  The assessor made reference to the wide range of employment opportunities, access to education in government and public institutions, basic health facilities, electricity and water utilities.  The assessor made reference to the reports of high-profile attacks conducted by insurgents in Kabul, but noted the primary targets are government institutions, political figures, local and international security forces and international organisations.  The assessor found the claimant did not fall within any of those groups who are targeted by insurgents. 

22. The assessor made reference to the fact that the applicant had said he knew people living in Kabul and that Hazaras, as an ethnic group, are well-represented in the city. The assessor made reference to Kabul being a mixture of ethnic and religious communities. The assessor made express reference to the reports of Dr Schuster and Professor Naley that integration is difficult for people with associates in the area that they are moving to and even more so if they do not have contacts. 

23. The assessor took into account the claimant’s experience and the fact that he had lived and worked in Kabul in a car workshop, as well as his living in Australia for an extended period of time without support of his family.  The assessor found that adapting to life in an urban setting like Kabul would not pose an unreasonable degree of difficulty for the applicant and that the applicant was an able-bodied person who had the capacity to work.

24. The assessor also found the applicant had a house in Kabul and took into account the submissions concerning disputes relating to land, and then took into account the possibility for land disputes with an ethnic dimension if the applicant was to find that his house had been illegally occupied.  Notwithstanding the potential for such a dispute if the applicant returned to his house, the assessor found that even if the applicant was unable to immediately access his house, it will still be reasonable for the applicant to relocate to Kabul.  It was in these circumstances that the assessor found that the claimant did not have a real chance of being persecuted for a Refugees Convention reason, and found that the applicant’s fear of persecution was not well-founded.

25. The assessor found that the applicant was not a refugee within the meaning of Art.1A and that Australia did not have a non-refoulement obligation to the claimant under the Refugees Convention. The assessor also considered the issue under complementary protection and found that she was not satisfied that the applicant had a real chance of being subject to significant harm should he be returned to Afghanistan and found that there was no non-refoulement obligation under the Convention Against Torture or Other Cruel, Inhumane or Degrading Treatment or Punishment or under The International Covenant on Civil and Political Rights. 

26. The application identifies the following grounds:

    Ground one

    The assessor failed to take into a relevant consideration, asked the wrong question, sidestepped the question to be addressed, or applied the wrong test in finding that the applicant could relocate to Kabul, and thus was not entitled to a protection visa.

    Particulars

    1.1 A consideration of the assessor's reasons as a whole indicates that the assessor failed to consider how the general security situation impacted upon the reasonableness of the Applicant's relocation to Kabul, because the assessor confined their consideration of the risk of harm to the Applicant in Kabul to the risk of harm for a Convention reason, or the risk over and above the risk to the general population.

    1.2 The applicant's claims and the material before the assessor raised an argument that, relevant to the reasonableness of relocation to Kabul for the Applicant was the general security situation in Kabul and the risk of harm that posed for the Applicant, regardless of whether or not the risk of harm that it gave rise to was for a Convention reason, or a risk over and above the risk faced by the general population of Kabul.

27. Mr Jackson of counsel for the applicant skilfully developed an argument that the assessor had committed an error of the kind identified in MZYQU v Minister for Immigration and Citizenship & Anor [2012] FCA 1032. I accept the submissions of the first respondent that that case is distinguishable from the assessment made in the present case, as in MZYQU there were findings that gave rise to the error that was identified of confining the consideration of the risk of harm to s.91A(1)(b) of the Migration Act 1958 in that case.  No such error was made by the assessor in the present case.  I find that the assessor did consider the level and kind of harm in respect of the applicant’s claims. 

28. On a fair reading of the applicant’s submissions, the applicant’s claims were that he would be specifically targeted and not merely that he would face the same risk of harm as the population generally.  There was no failure by the assessor to address the integers of the claim advanced by the applicant in relation to his fears in respect of relocation.  There was no failure by the assessor to apply the correct relocation test or to take into account the particular circumstances of the applicant in determining whether relocation was reasonable. The submission that the assessor applied the wrong test in finding the applicant could relocate to Kabul is not made out.

29. The Court was taken in detail to the submissions prior to the interview before the assessor in relation to the applicant’s fears which relevantly advanced a threat to the applicant in Kabul being not one faced by the population generally though the extreme deterioration in security in the capital since 2011 was relevant.  It was advanced in those submissions that the applicant would be directly threatened in Kabul by the Taliban.

30. It was put in those submissions to the assessor that the threat to the applicant was personal and particularised, given his status as a returnee. Reference was made to the applicant’s fear of harm from the Taliban and Taliban affiliates, as well as harm from generalised as well as targeting violence in Kabul.

31. The Court was taken to the detailed submissions concerning the applicant’s fear of persecution and serious harm in Kabul, as well as an identification of the level of violence particular to Hazaris in a particular area of Kabul.  This included a short list of the most relevant attacks in terms of targets and locations in Kabul from 2013 to 2015.

32. The Court was also taken to the post-hearing submissions and, in detail, to the report of Dr Schuster that addressed a number of topics, including internal relocation to Kabul, the security situation in Kabul and sufficiency of protection.  That report advanced that a person being returned would still be in a situation that would be considerably worse than the general population, and asserted a greater risk for those returning from the west, and asserting that the situation in Kabul was such that it should not be assumed that it was safe to forcibly return people there.

33. It was a matter for the assessor as to what country information she accepted. It is apparent that the assessor took into account the applicant’s claims and fears in relation to Kabul in respect of relocation and made adverse findings that were open on the material before the assessor.

34. I do not accept that generalised violence was a claim that arose on the material before the assessor. To the extent that generalised violence can be said to be a claim that arose on the material before the assessor, on the assessor’s reasons I find that the assessor took into account the generalised violence in the finding she made that it would be safe for the applicant to return to Kabul. 

35. No jurisdictional error of the kind identified in the application has been made out.  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: 21 July 2016