WZASD v MIBP
[2013] FCCA 1940
•29 November 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| WZASD v MINISTER FOR IMMIGRATION & ANOR | [2013] FCCA 1940 |
| Catchwords: MIGRATION – Judicial review – independent protection assessment – complementary protection provisions – whether real risk of suffering significant harm – whether mental pain or suffering giving rise to significant harm – whether denial of fair opportunity to give evidence and make submissions concerning inference drawn as to applicant’s inheritance claim in Afghanistan – whether failure to make finding concerning relocation within Afghanistan. |
| Legislation: Migration Act 1958 (Cth), ss.5, 36(2), (2A) and (2B), 46A(1) and (2) |
| Commissioner for ACT Revenue v Alphaone (1994) 49 FCR 576 Minister for Immigration & Ethnic Affairs v Guo & Anor (1997) 191 CLR 559 Sabaratnasingam v Minister for Immigration & Multicultural Affairs [2000] FCA 261 SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2006) 228 CLR 152; [2006] HCA 63 SZKMS v Minister for Immigration & Citizenship [2008] FCA 499 |
| Applicant: | WZASD |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | GRAHAM MCDONALD IN HIS CAPACITY AS INDEPENDENT PROTECTION ASSESSOR |
| File Number: | PEG 74 of 2013 |
| Judgment of: | Judge Lucev |
| Hearing date: | 25 September 2013 |
| Date of Last Submission: | 25 September 2013 |
| Delivered at: | Perth |
| Delivered on: | 29 November 2013 |
REPRESENTATION
| Counsel for the Applicant: | Mr D V Blades |
| Solicitors for the Applicant: | CASE for Refugees |
| Counsel for the First Respondent: | Mr M J Smith |
| For the Second Respondent: | Submitting appearance, save as to costs |
| Solicitors for the First and Second Respondents: | Sparke Helmore |
DECLARATION AND ORDERS
The Court declares that the Second Respondent, in his capacity as Independent Protection Assessor, did not make his recommendation of 23 September 2012 according to law when considering the issue of complimentary protection, in that he:
(a)denied the Applicant procedural fairness with respect to the question of whether the Applicant could pursue his rights to an inheritance against his uncle in relation to the family home; and
(b)failed to consider whether it would be reasonable for the applicant to relocate to another area of Afghanistan, contrary to s.36(2B)(a) of the Migration Act 1958 (Cth).
The Court orders that:
(a)the First Respondent, whether by himself or by his servants, officers, delegates or agents, be restrained from relying on the Second Respondent’s recommendation of 23 September 2013; and
(b)the name of the First Respondent be changed to “Minister for Immigration & Border Protection”.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 74 of 2013
| WZASD |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| GRAHAM MCDONALD IN HIS CAPACITY AS INDEPENDENT PROTECTION ASSESSOR |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is a citizen of Afghanistan.[1] He arrived in Australia in December 2011.[2] The applicant was:
a)without a visa;[3] and was, therefore, an offshore entry person for the purposes of s.5(1) of the Migration Act 1958 (Cth);[4] and
b)precluded by s.46A(1) of the Migration Act 1958 from making an application for any visa, including a protection visa, unless the first respondent, the then Minister for Immigration, Multicultural Affairs & Citizenship, now the Minister for Immigration & Border Protection,[5] exercised power under s.46A(2) of the Migration Act 1958 permitting the applicant to make a visa application.
[1] Court Book (“CB”) 1.
[2] CB 3.
[3] CB 88.
[4] “Migration Act”.
[5] “Minister”.
On 12 March 2012, the applicant made a request for a protections obligation evaluation.[6] On 9 May 2012 the applicant was notified that he had been assessed as not meeting the Convention definition of a refugee.[7] The matter was referred for an Independent Protection Assessment. On 29 August 2012 the applicant was interviewed by the second respondent, the Independent Protection Assessor.[8] On 23 September 2012 the IPA recommended to the Minister that the applicant not be recognised as a person to whom Australia owes protection obligations.[9]
[6] CB 30-75.
[7] CB 110-122.
[8] “IPA”.
[9] CB 206-225 (“IPA Recommendation”).
By application dated 23 April 2013, the applicant applied to this Court seeking declaratory and injunctive relief in relation to the IPA Recommendation. On 11 September 2013, the applicant served a proposed amended application.[10] The Proposed Amended Application contains an additional ground of review, being proposed ground 5, and ground 3 of the original application was abandoned. The Minister did not consent to the applicant being granted leave to include proposed ground 5 of the Proposed Amended Application, on the basis that it did not have sufficient prospects of success. The Proposed Amended Application was filed in Court, by leave, on the day of the hearing, with the issue of leave to raise the proposed ground 5 reserved, to be determined together with the substantive application.
[10] “Proposed Amended Application”.
The applicant’s claims
The applicant, a 26 year old Sunni Muslim of Tajik ethnicity,[11] claimed that he feared harm in Afghanistan because of:
a)a political opinion of opposition to the Taliban that would be imputed to him;
b)his ethnicity; and
c)his membership of particular social groups, namely:
i)“a minority of Sunni Muslims”; and
ii)“returned asylum seekers”.[12]
[11] CB 2, 14 and 16.
[12] CB 213-214 at para.42.
The applicant claimed that his family’s home was destroyed in a rocket attack in 1998 by a Hezb-i-Islami[13] commander and that his parents were killed by Hezb-i-Islami’s forces the following day. The applicant was at school at the time of the attack. The applicant claims that in 2002 he moved to a work in a bakery in Kabul and that in 2007 the owner of the bakery where he was then working received threats from the Hezb-i-Islami’s forces. The applicant was advised by the owner of the bakery to leave as he wanted no trouble.[14]
[13] It would appear that Hezbi-i-Islami are a Islamist terror group based in Afghanistan with close ties to Al Qaeda and other jihadist groups based in Pakistan and Central Asia: see the extract from the electronic version of the Long War Journal at CB 144.
[14] CB 211 at paras.22-26.
The applicant claimed that he then moved to Iran and stayed there until he was deported in 2011. The applicant returned to his family home in Afghanistan to find that it had been rebuilt and was being occupied by a Pashtun family, who had been sold the property by the applicant’s uncle. The applicant claimed that he took issue with his uncle given that the uncle had no right to enter into such a transaction. The applicant claimed that he was visited by two Pashtun men who threatened him and told him to forget about the house and that the two men told him to leave Afghanistan or he would be killed.[15]
[15] CB 212-213 at paras.29-37.
The IPA Recommendation
The IPA found that:
a)that it was conceivable, and indeed probable, that sometime in 1998 the applicant’s house, and the members of his immediate family, were subject to retaliatory action by Taliban forces commanded by Noor Mohammad, whom the applicant now accepts was killed in a gun battle in Pakistan in April 2011, and is not the same Noor Mohammad who is a Tajik member of the Afghan Parliament;[16]
b)the death of the Taliban Noor Mohammad makes any claim of fear arising from his acts in 1998 “untenable”, and lessens the likelihood of risk to the applicant from the former forces of the Taliban Noor Mohammad in the foreseeable future, making the risk remote or insubstantial so that there is no real chance of the applicant being persecuted by Hezb-i-Islamic forces because he is a Tajik;[17]
c)there is no substantiated or indicative current evidence of ethnically based killings aimed at the Tajik community in Kabul, or elsewhere in Afghanistan, and nothing to indicate the likelihood that they will arise in the reasonably foreseeable future, and, therefore, the applicant does not have a well-founded fear of persecution by the Taliban, or those aligned with the Taliban, because he is a Tajik;[18]
d)the applicant’s claim to be a member of the social group “minority of Sunni Muslims” is misconceived as Sunni Muslims comprised 80-85% of the Afghan population;[19]
e)even if the claim of a well-founded fear of persecution on the basis of the applicant being a Sunni Muslim extended to being a part of a minority of Sunni Tajik Muslims that claim must also fail because there was no or insufficient material to support that Tajiks were being persecuted in Afghanistan;[20]
f)the applicant would not be perceived as holding any political views such that he would be targeted by the Taliban;[21]
g)the applicant’s claimed fear of his paternal uncle pursuing him to foreclose the applicant seeking reimbursement for the sale of the applicant’s father’s property[22] was not a matter which gave rise to a Convention related claim, but was rather an intra-family dispute;[23]
h)the assault of the applicant by two Pashtun men at the applicant’s hotel in Kabul was at his uncle’s behest, and not at the behest of the new owners of the applicant’s family property, the IPA being satisfied that the applicant had not told anyone that he had provided the purchasers with the name of the hotel where he was residing;[24] and
i)the applicant did not have a well-founded fear of persecution on account of his membership of the social group comprising “returned asylum seekers”.[25] There was no evidence that returned asylum seekers from a western country who had been away from Afghanistan for only one to two years fit into the particular social group of westernised returned asylum seekers, and the applicant was not, therefore, qualified as a member of the particular social group identified (that is westernised returned asylum seekers).[26]
[16] CB 221 at para.68.
[17] CB 221-222 at para.69.
[18] CB 222 at para.72.
[19] CB 222 at para.73.
[20] CB 222-223 at para.73.
[21] CB 224 at para.78.
[22] “Inheritance Claim”.
[23] CB 223 at para.74.
[24] CB 223 at paras.74-76.
[25] CB 224 at para.77.
[26] CB 223-224 at para.77.
The IPA then considered the applicant’s claims under the complementary protection provisions of the Migration Act 1958.[27] In that regard, the IPA found as follows:
[27] Migration Act, s.36(2)(aa), (2A) and (2B).
79Since I have found not any of the grounds advanced give rise to him [the applicant] having a well-founded fear of persecution I am unable to recommend to the Minister that a visa be granted to him for a Convention reason. I must also consider whether he may qualify under the provisions of the Complementary Protection legislation. Here the facts relied upon related to whether his uncle will seek him out in order to have him killed. If so he may be considered to face significant harm by being arbitrarily deprived of his life – one of the grounds which would call in aid the protective provisions.
80The delegate rejected the claimant as a credible witness and therefore did not accept the claimant’s account in as far as it related to any threatened actions by the claimant’s uncle. I do not reject the claimant’s credibility with respect to the circumstances arising from the stated actions of the claimant’s uncle. While, as set out in paragraph 51 above, the country information indicates there being a history of strong family and community ties existing in Afghanistan, I accept that this is a generalisation, to which there will be exceptions. I am satisfied that the claimant’s uncle was responsible for sending the two Pashtun men to the claimant’s hotel which resulted in the claimant being assaulted and threatened. However the claimant, while a threat against his life was made, was not killed. There is nothing from that which the claimant has said which is indicative that his uncle is a man of influence or has any connections which may enable him to trace the claimant if the claimant returned to Afghanistan.
81The claimant’s uncle knew where the claimant was temporarily staying only as the result of the claimant giving him that information. The more likely scenario is that there will be no further harassment of the claimant by his uncle unless the claimant initiates contact and provides his location details to his uncle – in the circumstances an unlikely occurrence. There is nothing to stop the claimant from pursuing his rights to his inheritance against his uncle through whatever, if any, official channels exist. That does not necessary involve the claimant in providing information about his whereabouts to his uncle. There are therefore no grounds for the Minister to believe, as a necessary and foreseeable consequence of the claimant being returned to Afghanistan, that he will suffer significant harm, as that term is defined in the legislation.
CONCLUSIONS
82.While I am not able to recommend that the Minister issue a visa under s36(2)(a) or s36(2)(aa) of the Migration Act I am satisfied that the claimant’s obviously heightened fears of incurring harm are genuinely felt. As stated earlier it is difficult to comprehend the psychological scar left on a child of returning home from school to find his family had been brutally killed. While your reviewer is not a psychologist and hence cannot pass a professional opinion, ordinary human experience and understanding evokes the strongest possible sympathy for the claimant’s circumstances, aggravated as they are by his paternal uncle’s deceptive, mercenary and aggressive behaviour. It also explains, in as far as such a set of circumstances is capable of explanation, the undoubted fear harboured by the claimant about returning to Afghanistan. The claimant is a young single man who[se] unique and disturbing circumstances deserve consideration of the exercise of the Minister’s discretion to permit him to remain Australia. I make that recommendation in the strongest possible terms.
RECOMMENDATION
83.I find that the claimant, [applicant], does not meet the criteria for a Protection (Class XA) visa set out in s.36(2) of the Migration Act 1958 or that he qualifies under the Complementary Protection provisions of the same Act. I am unable therefore to recommend that a visa be issued under those provisions of the Migration Act. However because of the claimant’s unique and unusual circumstances I recommend in the strongest possible terms that the Minister give earnest consideration to exercise his discretion to grant the claimant visa to remain in Australia.[28]
[28] CB 224-225 at paras.79-83.
The grounds of review (including the proposed ground 5) relate to the IPA’s findings with respect to complementary protection for the applicant.
Legislation
Section 36(2), (2A) and (2B) of the Migration Act 1958 provides as follows:
(2) A criterion for a protection visa is that the applicant for the visa is:
(a) a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receivingcountry, there is a real risk that the non-citizen will suffer significantharm; or
(b) …
(c)…
(2A) A non-citizen will suffer significantharm if:
(a) the non-citizen will be arbitrarily deprived of his or her life; or
(b) the death penalty will be carried out on the non-citizen; or
(c) the non-citizen will be subjected to torture; or
(d) the non-citizen will be subjected to cruel or inhuman treatment or punishment; or
(e) the non-citizen will be subjected to degrading treatment or punishment.
(2B) However, there is taken not to be a real risk that a non-citizen will suffer significant harm in a country if the Minister is satisfied that:
(a) it would be reasonable for the non-citizen to relocate to an area of the country where there would not be a real risk that the non-citizen will suffer significant harm; or
(b) the non-citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non-citizen will suffer significant harm; or
(c) the real risk is one faced by the population of the country generally and is not faced by the non-citizen personally.
Section 5 of the Migration Act 1958 defines “torture”, “cruel or inhuman treatment or punishment” and “degrading treatment or punishment” as follows:
" torture" means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a) for the purpose of obtaining from the person or from a third person information or a confession; or
(b) for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c) for the purpose of intimidating or coercing the person or a third person; or
(d) for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e) for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
" cruel or inhuman treatment or punishment" means an act or omission by which:
(a) severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b) pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
" degrading treatment or punishment" means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a) that is not inconsistent with Article 7 of the Covenant; or
(b) that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
First ground of review – paragraph 1 of the Proposed Amended Application
The first ground of review is as follows:
1.The second respondent misconstrued the legal test to be applied in determining whether the applicant is owed protection obligations under s 36(2)(aa) of the Migration Act 1958 (Cth) (the Act) by inquiring whether the applicant would suffer significant harm, when he ought to have inquired whether there was a real risk that the applicant would do so.
Applicant’s submissions
The applicant’s submissions on the first ground of review are as follows:
a)during the oral hearing, the IPA and the applicant’s lawyer “agreed to confine the grounds of the applicant’s complementary protection claim to the applicant’s fear of being killed by his uncle”:[29]
[29] Applicant’s Outline of Submissions, para.15.
GM… As far as the complementary legislation is concerned are you asserting that he has a fear for his life from his uncle?
AgentYes.
GMAnd that they be all the grounds that I have to consider?
AgentYes I so believe.[30]
[30] Transcript of IPA hearing (“Transcript”) 27-28 (annexed to affidavit of Tannaz Pasha dated 23 August 2013).
b)the IPA’s consideration of the applicant’s complimentary protection claim constituted:
i)setting out s.36(2)(aa), (2A) and (2B) of the Migration Act;[31]
ii)noting that “cruel or inhuman treatment or punishment”, “degrading treatment or punishment” and “torture” were “further defined” in s.5(1) of the Migration Act;[32] and
iii)three paragraphs applying the law to the applicant’s case;[33]
c)the IPA concluded:
There are therefore no grounds for the Minister to believe, as a necessary and foreseeable consequence of the [applicant] being returned to Afghanistan, that he will suffer significant harm, as that term is defined in the legislation.[34]
d)section 36(2)(aa) of the Migration Act required the IPA to consider whether “the Minister has substantial grounds for believing that … there is a real risk that [he] will suffer significant harm”. By applying the wrong test, the IPA failed to assess the applicant’s claim “by reference to correct legal principles, correctly applied”.[35]
[31] CB 209 at paras.15-17.
[32] CB 210 at para.16.
[33] CB 224 at paras.79-81.
[34] CB 224 at para.81.
[35] Plaintiff M61/2010E & Anor v Commonwealth of Australia& Ors (2010) 243 CLR 319 at 353-354 per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; [2010] HCA 41 at para.78 per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ (“Plaintiff M61”).
Minister’s submissions
The Minister’s submissions on the first ground of review are as follows:
a)this ground of review arises in the context of the IPA’s finding that there were no grounds for believing, as a necessary and foreseeable consequence of the applicant being removed from Australia, that he would suffer significant harm at the hands of his uncle;
b)although the IPA did not use the phrase “real risk” when making the complementary protection findings,[36] it is plain that the IPA:
[36] CB 224 at para.81.
i)understood the test to be applied;[37] and
ii)did not consider that there was a “real risk” that the applicant would suffer significant harm at the hands of his uncle;[38]
c)that the IPA did not consider there to be a real risk is evident from the IPA’s finding that there:
i)was nothing to suggest that the uncle was a man of influence such that he would be able to trace the applicant if he returned to Afghanistan, and the co-related finding that the uncle’s knowledge of the applicant’s previous location was as a result of the applicant giving him that information; and
ii)would likely be no further harassment in the absence of the applicant providing his location details to his uncle, which the IPA found to be an unlikely outcome;[39] and
d)properly characterised, the applicant’s contention in this ground of review constitutes nothing more than an expression of dissatisfaction with a factual finding made by the IPA.
[37] CB 209-210 at paras.15-17.
[38] CB 224 at paras.80-81.
[39] CB 224 at paras.80-81.
Consideration of first ground of review
It is manifest that the IPA knew the correct test to be applied: the test and the relevant legislative provisions of the Migration Act 1958 were referred to by the IPA as part of the relevant law with respect to complementary protection grounds.[40] It is also manifest that the significant harm which the applicant feared a real risk of was that he had a fear for his life from his uncle, and the complementary protection grounds were limited to that fear.[41]
[40] CB 208 at para.5 and CB 209-2010 at paras.15-17.
[41] See Transcript 27-28 set out at para.14 above.
The IPA examined the facts and concluded that:
a)two Pashtun men assaulted and threatened the applicant at the applicant’s hotel in Kabul, and made a threat against his life, but did not kill him;[42]
b)the applicant’s uncle was responsible for sending the two Pashtun men to assault the applicant;[43]
c)nothing indicates that the applicant’s uncle is a man who has the influence or connections to enable him to trace the applicant if the applicant returns to Afghanistan, and the more likely scenario is that there will be “no harassment” of the applicant by his uncle;[44] and
d)if the applicant returns to Afghanistan and makes the Inheritance Claim it will not be necessary for him to reveal his location to his uncle in order for him to pursue the Inheritance Claim through whatever, if any, official channels exist.[45]
[42] CB 224 at para.80.
[43] CB 224 at para.80.
[44] CB 224 at paras.80-81.
[45] CB 224 at para.81. The Court notes that this conclusion is the subject of a further alleged jurisdictional error – see the fourth ground of review below – but for present purposes the facts as found by the IPA can be accepted.
On the basis of the above facts the IPA found, as a fact, that there were “no grounds” on which the Minister could form the belief that the applicant “will suffer significant harm, as that term is defined in the legislation”.[46] This is a finding of fact by the IPA.[47]
[46] See para.11 above for the definition of “significant harm” in s.36(2A) of the Migration Act.
[47] CB 224 at para.81.
The IPA went on to conclude that:
a)he was not able to recommend to the Minister that he issue a visa under the complementary protection provisions of the Migration Act 1958, specifically s.36(2)(aa) of the Migration Act 1958;[48] and
b)the applicant did not meet the criteria for, or qualify for, a visa under the complementary protections provisions of the Migration Act 1958.[49]
[48] CB 225 at para.82.
[49] CB 225 at para.83.
It is evident from the above that the IPA made a finding of fact with respect to the issue of significant harm feared by the applicant, and applied the relevant criteria or qualifications to that finding of fact to conclude that the applicant was not entitled to a visa under the complementary protection provisions of the Migration Act 1958.
A broad, beneficial and not overly critical analysis of the relevant paragraphs of the IPA Recommendation is appropriate on judicial review. This approach follows from the line of authority commencing with Minister for Immigration & Ethnic Affairs v Wu Shan Liang & Ors.[50]
[50] (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ; Minister for Immigration & Citizenship & v SZMDS & Anor (2010) 240 CLR 611 at 623-624 per Gummow ACJ and Kiefel J, at 634, fn.73 per Heydon J; [2010] HCA 16 at para.35 per Gummow ACJ and Kiefel J, at fn.73 per Heydon J; DZAAR v Minister for Immigration & Anor (2012) 134 ALD 154 at 167 per Lucev FM; [2012] FMCA 847 at para.31 per Lucev FM.
The IPA’s finding of fact means that there could never be a risk of the applicant suffering significant harm because there were no grounds for the Minister believing that he would suffer significant harm at all. In those circumstances there could not be a real risk that the applicant would suffer significant harm. In a slightly different context, but by way of an analogous principle, the High Court observed in Minister for Immigration & Ethnic Affairs v Guo & Anor:[51]
But no fear can be well-founded for the purpose of the Convention unless the evidence indicates a real ground for believing that the applicant for refugee status is at risk of persecution.[52]
[51] (1997) 191 CLR 559 (“Guo”).
[52] Guo at 572 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ.
When the IPA Recommendation is properly, that is broadly and beneficially, read it is the Court’s view the IPA applied the correct test. But even if the IPA did not apply the correct test the factual findings are such that the correct test would still not give rise to a basis for complementary protection under the first ground of review. In this case there can be no real risk of significant harm in circumstances where there are no grounds for believing that the applicant will suffer significant harm at all. Thus, even if the wrong test was applied, and even if the correct test were now to be applied, on the facts as found, the result would not be any different in relation to whether the criteria or qualifications for complementary protection had been met. In those circumstances there can be no basis for any relief under the first ground of review.
In the above circumstances, the first ground of review is not made out.
Second ground of review – paragraph 2 of the Proposed Amended Application
The second ground of review is as follows:
2.The second respondent failed to consider whether, if returned to Afghanistan, the applicant would suffer mental pain or suffering such as would result in the applicant being owed protection obligations under section 36(2)(aa) of the Act.
Applicant’s submissions
The applicant’s submissions on the second ground of review are as follows:
a)the IPA accepted that the applicant’s “obviously heightened fears of incurring harm” were “genuinely felt”,[53] and referred to the IPA’s reasons in the IPA Recommendation at paragraph 83, set out above;[54]
b)in considering whether the applicant’s fear of psychological harm entitled him to complementary protection, the IPA did not refer to any of the specific parts of the Migration Act 1958 in which the complementary protection criteria are set out (s.36(2A) of the Migration Act 1958), nor to any of the definitions set out in s.5 of the Migration Act 1958. Although the IPA did refer to the criteria early in the IPA Recommendation,[55] in the findings and reasons section the IPA took a global approach without analysing the applicant’s claims against the definition of “significant harm”;
c)as a result, the IPA did not consider whether the applicant was entitled to complementary protection through, for example, being subjected to “cruel or inhuman treatment or punishment”[56] within the meaning of s.36(2A)(d) of the Migration Act 1958. The IPA found that the applicant’s uncle was responsible for sending two Pashtun men to the applicant’s hotel which resulted in the applicant being assaulted or threatened, but he concluded that there will be no further harassment of the applicant by his uncle unless the applicant initiates contact with his uncle; and
d)the IPA did not make any findings on whether the applicant’s fear of being pursued by his uncle could constitute an instance of mental suffering falling within the definition of “cruel or inhuman treatment or punishment”. Nor did the IPA assess the “undoubted fear harboured by the claimant about returning to Afghanistan”[57] against any of the complementary protection criteria mentioned in s.36(2A) of the Migration Act.
[53] CB 225 at para.83.
[54] See para.8 above.
[55] CB 209-210 at paras.15-17.
[56] The definition of “cruel or inhumane treatment or punishment” is set out at para.12 above.
[57] CB 225 at para.82.
Minister’s submissions
The Minister’s submissions on the second ground of review are that at no stage did the applicant claim that he would suffer significant harm in the form of mental pain or suffering arising from a return to Afghanistan from Australia. Nor can it be said that such a claim squarely arose on the materials before the IPA. The IPA therefore did not err in failing to consider the putative claim.
Consideration of second ground of review
The first observation to be made is that the applicant did not claim that he would suffer mental pain or suffering such as to constitute significant harm for the purposes of s.36(2A) of the Migration Act 1958 if returned to Afghanistan. What he claimed was “a fear for his life from his uncle”, or a “fear of being killed by his uncle”.[58] That claim – a claim of arbitrary deprivation of life for the purpose of the definition of “significant harm”[59] – was considered by the IPA, who arrived at the factual conclusions set out at paragraph 17 above.
[58] See para.14(a) above.
[59] Migration Act, s.36(2A)(a).
The IPA concluded that the applicant would not suffer significant harm if he returned to Afghanistan, and would not suffer significant harm “as that term is defined in the legislation”.[60] This indicates that the IPA not only considered the claim as made, namely that the applicant had a fear for his life or of being killed at his uncle’s hands, but considered the claim on a wider basis, as is evident from the fact that he concluded that there would be “no harassment” of the applicant by his uncle if the applicant returned to Afghanistan. The IPA therefore:
a)considered the claims made;
b)was not obliged to consider the claim now made, as it was not a claim made before the IPA; and
c)considered the claim on a wider basis in any event, and concluded that the applicant would suffer “no harassment”.
That conclusion excludes any finding that the applicant would suffer “significant harm” as that term is defined in s.36(2A) of the Migration Act 1958.
[60] CB 224 at para.81.
The reference by the applicant to the content of paragraphs 82 and 83 of the IPA Recommendation, and the IPA’s recommendation to the Minister that the Minister ought to grant the applicant a visa because of the applicant’s unique circumstances does not demonstrate, as was asserted in the applicant’s oral submissions, that the applicant will suffer significant harm if returned to Afghanistan. Rather, what the IPA says is that:
a)the applicant may have suffered a psychological injury when he came home from school, as a ten or eleven year old, to find that his family had been brutally killed;
b)the circumstances of his family being killed were aggravated by his uncle’s deceptive, aggressive and mercenary behaviour, doubtless a reference to the fact that whilst the applicant was in Iran the family house was sold by the uncle, without reference to the applicant, and that the uncle arranged for the applicant to be assaulted when he returned to Afghanistan from Iran and made inquiries about the sale of the house; and
c)as a consequence of (a) and (b) above the applicant is fearful of returning to Afghanistan.
The above described past events, and the fear said to arise from them, do not demonstrate a “real risk” that the applicant “will suffer” any of the forms of significant harm set out in s.36(2A) of the Migration Act 1958. What the IPA has said is that the applicant has suffered from the conduct described in the past, and is therefore deserving of further consideration by the Minister as to the grant of a visa in the Minister’s discretion. It does not however establish that the applicant’s suffering is a form of harm which falls within the parameters of “significant harm” for the purposes of s.36(2A) of the Migration Act 1958. It does not establish that the applicant “will suffer” from “significant harm” if returned to Afghanistan, and such a conclusion would in fact be inconsistent with the factual finding of the IPA that the applicant will suffer no harassment from his uncle (who is the only alleged source of any such harm).
In the above circumstances, the second ground of review is not made out.
Third ground of review – paragraph 3 of the Proposed Amended Application
The third ground of review was not pursued by the applicant, and leave was granted at hearing, without opposition from the Minister, to strike out the third ground of review.
Fourth ground of review – paragraph 4 of the Proposed Amended Application
The fourth ground of review is as follows:
4.The second respondent inferred to the effect that, if returned to Afghanistan, the applicant would be able to pursue his uncle for the return of his inheritance without the necessity of providing to his uncle information concerning his whereabouts, when:
(a)there was no basis on the evidence before him for the second respondent to draw that inference; and
(b)the second respondent failed to afford the applicant a fair opportunity to adduce evidence and make submissions on the question of whether or not the second respondent’s inference was correct.
Applicant’s submissions
The applicant referred to paragraphs 80 and 81 of the IPA Recommendation, which are set out above,[61] and then submitted in relation to the fourth ground of review as follows:
a)the IPA never put to the applicant the finding that the applicant could pursue his Inheritance Claim without disclosing his location to his uncle. In so doing, the IPA failed to afford the applicant procedural fairness;[62] and
b)there was no evidence before the IPA to support the finding that the applicant could pursue his Inheritance Claim without disclosing his location to his uncle. The IPA therefore erred in relying on that finding in concluding that there were no grounds for the Minister to believe that the applicant would suffer significant harm if returned to Afghanistan.
[61] See para.8 above.
[62] Plaintiff M61 CLR at 356-357 per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; HCA at para.91 per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ.
Minister’s submissions
The Minister’s submissions in relation to the fourth ground of review are as follows:
a)the applicant’s no evidence contention is founded on a misreading of the IPA Recommendation. On a fair reading of the relevant paragraph[63] it is plain that the IPA was simply saying that the applicant would not necessarily have to provide to his uncle information concerning his whereabouts. In any event, it is not clear that the applicant even claimed that he would attempt to pursue his Inheritance Claim, so as to raise the possibility of the applicant’s whereabouts being made known to the applicant’s uncle; and
b)the applicant’s procedural fairness contention is similarly misconceived. There was no obligation on the IPA to reveal its thought processes and give a running commentary on what it thought of the applicant’s evidence.[64]
[63] CB 224 at para.81.
[64] SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2006) 228 CLR 152 at 166 per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ; [2006] HCA 63 at para.48 per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ (“SZBEL”).
At hearing the Minister’s Counsel accepted, quite properly, that there was no evidence before the IPA as to whether the applicant could pursue the Inheritance Claim without the knowledge of the uncle, or, and very importantly, whether if the Inheritance Claim were to be pursued by the applicant, whether the applicant’s identity would be protected in whatever process applied.[65]
[65] Transcript 21.
The Minister also submitted that the finding concerning the applicant’s whereabouts not being discoverable by the uncle:
a)was not a central part of the IPA’s reasoning leading to the conclusion that the applicant was a person who did not meet the criteria for a protection visa on complementary protection grounds;[66] and
b)was not a conclusion based on any material adverse to the applicant.[67]
[66] Transcript 22.
[67] Transcript 23.
Consideration of fourth ground of review
Dealing first with the assertion that the IPA’s reasoning with respect to the Inheritance Claim did not necessarily involve the applicant in providing information about his whereabouts to his uncle was not a matter central to the IPA’s reasoning, paragraphs 80 and 81 of the IPA Recommendation are set out above,[68] and show a logical chain of reasoning which relevantly starts with the applicant being assaulted by two Pashtun men at his hotel at his uncle’s behest. That assault was able to occur because the uncle knew where the applicant was. The IPA then goes on to find that if the applicant were to return to Afghanistan the uncle would not be able to trace him because he was not a man of influence or did not have the relevant connections to enable him to do so. The IPA then asserts, that if the applicant were to return to Afghanistan, he would suffer no further harassment unless he provided details of his whereabouts to his uncle, which the IPA considered to be an unlikely occurrence. The IPA then asserted that there was nothing to prevent the applicant from pursuing the Inheritance Claim because it did not necessarily involve the applicant providing information about his whereabouts to his uncle.[69] Having dealt with those matters the IPA then proceeded to immediately conclude that there “are therefore no grounds for the Minister to believe” that if returned to Afghanistan the applicant “will suffer significant harm”.[70] In the Court’s view the IPA’s conclusion with respect to the Inheritance Claim and its pursuit, and whether it would involve the applicant revealing his whereabouts to his uncle, is a step in the chain of reasoning which leads to the conclusion that there are no grounds for the Minister to believe that the applicant will suffer significant harm if he returns to Afghanistan.
[68] See para.8 above.
[69] CB 224 at paras.80-81.
[70] CB 224 at para.81.
There is no evidence of the processes which operate in Afghanistan in relation to a matter such as the Inheritance Claim. Furthermore, the proposition that if the applicant were to pursue the Inheritance Claim that would not result in the revelation of his whereabouts to his uncle was not a proposition which was ever put to the applicant by the IPA. The fact that there was no evidence about the processes in Afghanistan for pursing a claim such as the Inheritance Claim made it important that the proposition that the pursuit of such a claim would not involve the applicant in revealing his whereabouts to his uncle be put to the applicant. That is so because the proposition is itself adverse to the applicant, and results in a conclusion adverse to the applicant. There was, therefore, an obligation on the IPA to put the matter to the applicant in such a way as to give him a sufficient opportunity to give evidence or make submissions about the issue in respect of which the IMR reached an adverse conclusion, because that issue was in part determinative of the question as to whether the Minister might have grounds to believe that the applicant would or would not suffer significant harm if returned to Afghanistan.[71] This was not a case of the IPA not having to reveal his thought processes,[72] for what was said about the pursuit of the Inheritance Claim not necessarily revealing the applicant’s whereabouts was not a matter on which there was any evidence, and not a matter raised in terms at the hearing before the IPA. It was therefore not a matter, seemingly, which was part of the IPA’s thought processes at the time of the IPA hearing. Even if it was, what it led to was an assertion for which there was no evidence, leading to a conclusion adverse to the applicant, which was not put to the applicant.
[71] SZBEL CLR at 165 per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ; HCA at para.44 per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ.
[72] See SZBEL CLR at 166 per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ; HCA at para.48 per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ.
The relevant principles in relation to procedural fairness are to the following effect:
a)procedural fairness requires a decision-maker to alert the person entitled to be heard to the questions or critical issues to be addressed;[73]
b)in SZBEL the High Court approved of what was said in the Full Court of the Federal Court in Commissioner for ACT Revenue v Alphaone,[74] that:
It is a fundamental principle that where the rules of procedural fairness apply to a decision-making process, the party liable to be directly affected by the decision is to be given the opportunity of being heard. That would ordinarily require the party affected to be given the opportunity of ascertaining the relevant issues and to be informed of the nature and content of adverse material.[75]
[73] Kioa & Ors v West & Anor (1985) 159 CLR 550 at 587 per Mason J.
[74] (1994) 49 FCR 576 (“Alphaone”).
[75] Alphaone at 591-592 per Northrop, Miles & French JJ, cited at SZBEL CLR at 162 per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ; HCA at para.32 per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ.
In the circumstances, the applicant was not given an opportunity to deal with the allegation that pursuing the Inheritance Claim if he were to return to Afghanistan would not necessitate his whereabouts being revealed to his uncle.
In all the circumstances, the applicant has been denied procedural fairness, and the fourth ground of review is made out, and relief must follow.
Proposed fifth ground of review – paragraph 5 of the Proposed Amended Application – leave to amend
The proposed fifth ground of review is as follows:
5.The second respondent erred in failing to make a finding on whether it would be reasonable for the applicant to relocate within Afghanistan in circumstances where:
(a)this possibility was canvassed by the second respondent with the applicant at the interview with the second respondent;
(b)submissions were made on the reasonableness of relocation by the applicant’s agent; and
(c)the second respondent’s rejection of the applicant’s claim was founded on a conclusion that the applicant’s ‘obviously heightened fears of incurring harm’ [82] did not attract protection from Australia because of the remoteness of the possibility that the applicant’s uncle would locate him [81].
The applicant needs leave to amend to include the proposed fifth ground of review. In that regard, the parties agree that there is no prejudice to the Minister, and the question of leave to amend is essentially to be determined having regard to whether or not the proposed fifth ground of review has merit.
Applicant’s submissions
The applicant’s submissions with respect to the fifth ground of review are as follows:
a)in finding that the applicant’s uncle would not be able to “trace” the applicant if he returned to Afghanistan,[76] the IPA apparently considered that the applicant could avoid significant harm by relocating to north Afghanistan.[77] The IPA was entitled to make this finding only if it “would be reasonable for the [applicant] to relocate”.[78] The applicant’s agent submitted that it was not reasonable for the applicant to relocate because of his lack of a support network and access to infrastructure;[79]
b)in response to the IPA’s questions about the prospect of the applicant avoiding harm by relocating to north Afghanistan, the applicant said he could be identified by the Taliban Noor Mohammed (whom the applicant subsequently acknowledged was now dead), or his uncle using photographs[80] or computer records.[81] The applicant’s lawyer told the IPA that in order to relocate to north Afghanistan the applicant would need to go to Kabul, where he may be identified, before travelling north by road;[82]
c)the transcript of the hearing before the IPA demonstrates that the IPA reached the view, or considered as an interim conclusion, that the applicant could avoid coming into contact with his uncle by relocating within Afghanistan, even though no express finding on the question of relocation was made in the IPA Recommendation; and
d)given the prominence of relocation in the IPA’s reasoning process as evidenced by the transcript, the IPA erred in finding that “[t]he more likely scenario is that there will be no further harassment of the applicant by his uncle unless the applicant initiates contact and provides his location details to his uncle”[83] without making a finding on whether relocation by the applicant within Afghanistan, in order for the applicant to avoid coming into contact with his uncle or the Taliban, was reasonable.
[76] CB 224 at para.80.
[77] Transcript 19 and 20.
[78] Migration Act, s.36(2B)(a).
[79] Transcript 29.
[80] Transcript 19-20.
[81] Transcript 21.
[82] Transcript 29.
[83] CB 224 at para.81.
Minister’s submissions
With respect to the fifth ground of review the Minister submits that the IPA was under no obligation to consider the issue of relocation given that the IPA found that there was not a real risk that the applicant would suffer persecution or significant harm.[84]
[84] Sabaratnasingam v Minister for Immigration & Multicultural Affairs [2000] FCA 261 at para.13 per Whitlam, Lehane and Gyles JJ (“Sabaratnasingam”); SZKMS v Minister for Immigration & Citizenship [2008] FCA 499 at para.61 per Lander J.
Consideration of proposed fifth ground of review and leave to amend
The IPA concluded that there was not a real risk that the applicant would suffer persecution or significant harm, in part on the basis that the uncle would not know the applicant’s whereabouts if the applicant did not inform him, and in those circumstances (and ignoring for present purposes what the Court has subsequently concluded with respect to the fourth ground of review) it was not necessary for the IPA to consider the issue of the applicant’s possible relocation to northern Afghanistan’s Tajik regions.[85] It is, however, not possible to ignore the Court’s conclusion with respect to the fourth ground of review above. Had the IPA afforded the applicant procedural fairness by giving the applicant an opportunity to respond to the issue of whether or not his location would have been disclosed in the event that he pursued the Inheritance Claim upon return to Afghanistan, it might also have been the case that any possibility that the applicant’s location might have been disclosed as part of any adjudicative process on the Inheritance Claim process (either directly to the uncle, or indirectly through the current owners), would have necessitated the IPA considering whether or not it was possible for the applicant to relocate to an area in Afghanistan where there would not be a real risk that the applicant would suffer significant harm.[86]
[85] Sabaratnasingam at para.13 per Whitlam, Lehane and Gyles JJ; SZJYR & Ors v Minister for Immigration & Anor [2007] FMCA 1796 at para.35 per Nicholls FM (“SZJYR”).
[86] Migration Act, s.36(2B)(a).
The failure to afford procedural fairness under the fourth ground of review also raises the possibility that had procedural fairness been afforded to the applicant in that regard, the outcome of the first and second grounds of review might have been different. In the circumstances there are not, therefore, independent and unimpeached grounds for the IPA Recommendation.[87] In this context, the failure to consider whether or not the applicant could be safely relocated in Afghanistan was a jurisdictional error, giving rise to appropriate relief.
[87] SZJYR at para.36 per Nicholls FM, citing, amongst others, SZEEU v Minister for Immigration (2006) 150 FCR 214 at 265 per Allsop J; [2006] FCAFC 2 at paras.231-233 per Allsop J.
Absent the failure to afford procedural fairness found in relation to the fourth ground of review, the Court would have been of the view that the IPA was not under an obligation to consider the issue of relocation given that there was an independent finding that there was not a real risk that the applicant would suffer persecution or significant harm.[88] However, as explained above, that finding must now be in some doubt as a consequence of the failure to accord procedural fairness, and the further possible outcomes if procedural fairness had been afforded to the applicant.
[88] Sabaratnasingam at para.13 per Whitlam, Lehane and Gyles JJ; SZJYR at para.35 per Nicholls FM.
In the circumstances, it is appropriate to grant leave to amend the Application to include the proposed ground five, and in respect of ground five the Court finds that there was a jurisdictional error by reason of the failure to consider whether it would be reasonable for the applicant to relocate within Afghanistan if he returned there.
First and second grounds of review revisited
The Court’s findings with respect to the fourth and fifth grounds of review are such that had the IPA afforded the applicant procedural fairness, and had the IPA considered the question of relocation, then the findings sought to be reviewed under the first and second grounds of review might possibly have been different. Given the findings of jurisdictional error in relation to the fourth and fifth grounds of review, it is unnecessary to reconsider the Court’s conclusions with respect to the first and second grounds of review, and, in the absence of further factual material which might have emerged from an IPA Recommendation free of the errors found in relation to the fourth and fifth grounds of review, unproductive to do so.
Conclusions and orders
The Court has concluded that leave to amend the Proposed Amended Application to include ground five ought to be granted, and that jurisdictional error has been established in relation to grounds four and five, and that appropriate relief ought to follow.
The Court will hear the parties as to costs.
I certify that the preceding fifty-three (53) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev
Associate:
Date: 29 November 2013
12
14
2