FEDERAL COURT OF AUSTRALIA

BWJ18 v Minister for Home Affairs [2019] FCA 356

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed with costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

Revised from the transcript

LEE J:

1    This is an appeal from a judgment of the Federal Circuit Court dismissing an application for judicial review of a decision of the Immigration Assessment Authority (Authority) which had affirmed a decision of a delegate of the first respondent (Minister) not to grant the appellant a safe haven enterprise visa (visa). The Court has been greatly assisted by the way in which this appeal has been presented by both parties. The submissions have allowed the Court to proceed to determine the appeal without delay. There are four grounds advanced but prior to dealing with each of them I should say something about the background of the matter.

2    The appellant was born in Afghanistan in 1987 and arrived in Australia in November 2012 as an unauthorised maritime arrival. In June 2017, a delegate of the Minister refused to grant the appellant a visa and this decision was then referred to the Authority for review. The appellant’s migration agent provided submissions and a range of country and other information to the authority on various dates. A psychologist report was also provided. It will be necessary to return to the report below. In March 2018, the Authority, as noted above, affirmed the decision of the delegate.

3    It is unnecessary to set out, by way of background, the reasons for the Authority’s decision. Those parts which are material to the determination of the appeal will be referred to below in the context of dealing with the grounds of appeal. The grounds before me, are essentially in the same terms as the grounds of review advanced before the Federal Circuit Court. The grounds before me, however, obviously enough, have been reformulated as grounds asserting the primary judge failed to find jurisdictional error in the Authority’s decision. The four grounds of appeal are as follows:

1.    The primary judge erred in finding that the Second Respondent had not made a jurisdictional error by overlooking a claim or integer of a claim advanced by the Appellant when seeking the protection visa, being the Appellant’s claim that he feared returning to Afghanistan in part because of local Hazara who were Taliban spies and would report his return from a western country as a Christian convert.

2.    The primary judge erred in finding that the Second Respondent had not made a jurisdictional error by failing to give proper, genuine and realistic consideration through active intellectual engagement with the Appellant’s submission as to the depleted socio-economic situation and widespread poverty in Afghanistan when determining whether or not the Appellant would be able financially to support his family;

3.    As before the primary judge, the Appellant formally submits that the Second Respondent made a jurisdictional error by differing from the Delegate as to the basis for its decision without inviting comment from the Appellant under s 473DC of the Migration Act 1958 (Cth) and, to this end, formally submits that DGZ16 v Minister for Immigration and Border Protection [2018] FCAFC 12 was wrongly decided.

4.    The primary judge erred in finding that the Second Respondent had not made a jurisdictional error of legal unreasonableness in expressing its conclusion that the Appellant would not suffer harm due to the absence of mental health care in Afghanistan as there was no evident and intelligible justification for that conclusion on the material before the Second Respondent.

4    It is convenient to deal with each of these grounds individually.

Ground One

5    There is no dispute between the parties as to the applicable principles. As the appellant correctly notes, it is axiomatic that the Authority is obliged to consider all claims squarely raised on the material before the Authority. Before the Authority, the appellant claimed that he feared returning to Afghanistan, in part, because of local Hazara who were Taliban spies and would report his return from a Western country. It is contended, however, that in the relevant part of the Authority’s reasoning, the Authority failed to deal with such a claim. The reasons merely referred to the fact there is “no information to suggest that returnees from western countries attract negative attention from state authorities”: see the Authority’s reasons (AR) at [29]. The asserted difficulty is that the Authority made no reference to Taliban spies and their reporting of the appellant as somebody who could be accused of being a Christian.

6    It is common ground that this claim was raised at the appellant’s interview with the delegate of the Minister where he said:

I [spent] … four and a half years in Australia. So when I forced to return to Afghanistan, [spies] or [former men from] Hazara community who can report me to the Taliban and the Taliban will kill me because I came from the country like Australia and I will be accused of being a Christian …

7    It is said that the primary judge fell into error by concluding that the Authority had addressed this claim when concluding that the appellant did not face a real chance of relevant harm in Afghanistan by reason of returning from Australia, a Western country.

8    When read in full and contextually, I do not consider there is any merit in this ground. At AR [10] the Authority was clearly aware that the appellant feared harm from the Taliban for being a Hazara Shia, and a failed asylum seeker from a Western country. When returning to these claims later in the reasoning, the following appears at AR [27]-[29]:

27.    The applicant claims to fear returning to Afghanistan on the basis of having resided in Iran for an extended period of time and local Afghans would identify him speaking with an Iranian accent. The applicant has also now lived in Australia since 2012 and he also fears returning to Afghanistan on the basis of having resided in a western country and will be perceived to have become westernised.

28.    Under UNHCRs assisted return programme, 12 218 Afghan refugees from Pakistan and Iran returned to Afghanistan in the first quarter of 2015 which represents a substantial increase compared to the 2 346 Afghan refugees who returned during the same period in 2014. UNHCR also recorded the enforced return of 49 071 Afghan nationals from Iran between the same period in 2015. This information demonstrates a large number of Afghan nationals have returned to reside in Afghanistan from Iran. In taking into account the circumstances of the applicant, I give weight to the fact that he has resided in Iran for a considerable period of time throughout his life, however I note that his immediate family reside in Afghanistan and he has returned to visit them on two occasions prior to his departure for Australia. I find the applicant has maintained a familiarity with the Afghan culture and lifestyle despite not having lived there for an extended period of time since his youth. The applicant has not claimed to have faced (or feared) any problems, or harm, upon his return trips to Afghanistan and noting the numbers of Afghans returning from Iran, on the evidence before me I am not satisfied that he will be harmed upon return for speaking in an Iranian accent, his dress, not being familiar with his surroundings and culture or for any other reason related to his extended period living in Iran. I am not satisfied there is a real chance of any harm on this basis.

29.    I also note the applicant will be returning to Afghanistan after having lived in Australia since 2012. Australia being considered a western country, the applicant fears he will also be considered to be westernised. Returnees from western countries almost exclusively return to Kabul. Most returnees have been single men rather than family groups. DFAT understand that many returnees choose to remain in Kabul for economic reasons rather than return to their home provinces. There are no tracking mechanisms for those returned to Afghanistan and it is difficult to assess the conditions they face on return. DFAT has no information to suggest that returnees from western countries attract negative attention from state authorities for having sought and failed to gain asylum. I am aware of two recorded incidents of returnees to Afghanistan from Australia who were targeted and that these incidents occurred in 2014. I am aware of no reported incidents since then. I am not satisfied on the evidence before me that the applicant will be harmed on the basis of being western or being perceived to be western because of his time in Australia or otherwise. I note the applicant has resided in Australia since 2012 but I note that he will be returning to reside with his immediate family who he has maintained contact with. I am also satisfied the applicant has maintained knowledge of the Afghan culture and practices to assist his return. I am not satisfied his residence in Australia will put the applicant at any risk upon return on the basis of appearing western or being a failed asylum seeker from Australia and I am not satisfied there is a real chance he will face harm on this basis.

(Citations omitted, emphasis added)

9    It seems to me plain that the Authority’s findings are sufficiently broad to encompass and to have rejected any fear of harm by the appellant by reason of him having lived in Australia and any perception that might arise from him having lived in Australia including as to his religion. The Authority did not refer in express terms to the claim that the appellant would be reported by “spies”, and/or that he would be perceived to be a Christian by reason of his time spent in Australia. The way the Authority dealt with the claim seems to me to be a clear example of where findings have subsumed the claim in question, in the course of ultimately rejecting it at an appropriate level of generality. It follows that the primary judge was correct to find that no failure to consider the claim by the Authority was established.

Ground Two

10    Recently in Singh v Minister for Home Affairs [2019] FCAFC 3, the Full Court (Reeves, O’Callaghan and Thawley JJ) at [34] et seq, discussed the circumstances in which a decision-maker charged with a review may commit jurisdictional error, by failing to exercise the jurisdiction it was contemplated it would exercise. Their Honours noted this would occur where a decision-maker did not engage in an active intellectual process and give proper common, genuine and realistic consideration to:

•    a “substantial, clearly articulated argument relying upon established facts” – see: Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 at [24] per Gummow and Callinan JJ, with whom Hayne J agreed;

•    a claim “raised by the evidence and the contentions before it which, if resolved in one way, would or could be dispositive of the review” – see: NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1 at [63] per Black CJ and French and Selway JJ; or

•    a matter “that is an essential integer to an applicant’s claim or that would be dispositive of the review” – see: ETA067 v The Republic of Nauru (2018) 360 ALR 228 at [14] per Bell, Keane and Gordon JJ.

11    As their Honours went on to explain, however, it is important to recognise that the ultimate concern is with the identification of jurisdictional error and the caution must be kept firmly in mind to ensure that this ground of judicial review does not slide into impermissible merits review. The lack of engagement relied upon by the appellant to make out ground two, is the Authority’s failure to engage with the appellant’s detailed submissions as to the “depleted socio-economic situation and widespread poverty in Afghanistan”. It is said that the Authority merely found that because the appellant had work experience as a factory worker in Iran, as a painter in Australia, and had been engaged in employment many years ago in Afghanistan, it followed that the appellant would be able to support his family financially.

12    It is contended that the Authority was required to go further and assess the prospects of employment in the light of the dire economic situation in Afghanistan. The failure to do so resulted in the absence of required consideration. The primary judge rejected this argument at [23] of his Honour’s judgment. He was correct to do so. The Minister submits that the Authority expressly dealt with the appellant’s claim that he would be unable to support his family financially at [30] of its reasons. It is useful to extract that paragraph in full:

I note the applicant has claimed that if he returns to Afghanistan he will be unable to financially support his family. However I note the applicant has been engaged in employment since he was 13 years old and has worked in Iran in a factory and as a painter and has continued to work as a painter in Australia. I find the applicant will be able to seek employment either in Jaghori and/or its surrounds. I am not satisfied the applicant will face any harm if he were required to travel in and around the Hazarajat region for employment purposes. I am satisfied the applicant will be able to financially support his family, if he is required to do so, as he has been doing since he was 13 years old. I am not satisfied him seeking employment opportunities to support his family will result in a real chance the applicant will face any harm.

13    It seems to me that in this passage the Authority identified, dealt with, and rejected the appellant’s claims insofar as they related to an ability to support his family. It seemed to be accepted between the parties that notwithstanding the somewhat maladroit reference to the appellant being able to, “seek employment”, rather than, “seek and obtain” employment, it must be accepted that that is what the Authority found. Put another way, the Authority was satisfied the appellant could obtain a job in Jaghori and/or its surrounds given his past experience and hence support his family. In these circumstances the contention that there was a failure to give proper, genuine and realistic consideration to that aspect of the appellant’s claim is not demonstrated and the primary judge was, again, correct to reject this ground.

Ground Four

14    It is alleged by the appellant that the primary judge erred by not concluding that the Authority’s finding at [31], that the appellant would not suffer any harm on return to Afghanistan on account of having a mental health condition, was legally unreasonable. Again, Singh provides a useful summary of how a question as to whether a decision is legally reasonable is answered. That is, by reference to whether or not the decision is within the scope of the statutory authority conferred on the decision maker: see Singh at [61]. Such a conclusion might be drawn, for example, if it:

(1)    is “illogical”, though an inference of unreasonableness will not be supported merely because a decision appears to be irrational: SZVFW at [10] (Kiefel CJ); [82] (Nettle and Gordon JJ); Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [68] (Hayne, Kiefel and Bell JJ);

(2)    “lacks an evident and intelligible justification”: Li at [76] (Hayne, Kiefel and Bell JJ); SZVFW at [10] (Kiefel CJ), [82] (Nettle and Gordon JJ);

(3)    is plainly unjust, arbitrary, capricious or lacking in common-sense: Stretton at [11] per (Allsop CJ, with whom Griffiths and Wigney JJ relevantly agreed at [87], [90]); Muggeridge v Minister for Immigration and Border Protection (2017) 255 FCR 81 at [35] (Flick, Perry and Charlesworth JJ).

15    What is suggested here is that the conclusion drawn lacked an intelligible justification.

16    The difficulty with this argument is, as the Minister submits, that the appellant did not make any claim to fear harm on return to Afghanistan because of his alleged mental health condition. It was not explained by the appellant or Dr Pishyar’s psychologist report, dated 7 October 2017, as to how the condition might affect the appellant in Afghanistan or what the physical intervention referred to by the psychologist as a treatment recommendation meant in concrete terms. Additionally, it was not explained what, if any, medical attention or assistance the appellant would require if he returned to Afghanistan.

17    What in fact occurred was that the migration agent of the appellant emailed the report of Dr Pishyar to the Authority and said, “we submit that these conditions are relevant to the [appellant’s] claims for protection as they directly affect his ability to relocate within Afghanistan”. Pausing here, it is to be noted that the Authority did not consider that the appellant would need to relocate within Afghanistan but, even more importantly, the report stated that the appellant was receiving treatment and was, “gradually improving”.

18    Notwithstanding the somewhat Delphic explanation by the migration agent, the Authority turned to this matter at AR [31] as follows:

I have also taken into consideration the medical report provided by the applicant's clinical psychologist in October 2017. In the report, the applicant is described as having the following symptoms: poor memory and concentration, feeling hopelessness and helplessness, poor sleeping and feeling of tiredness and low energy and lethargic attitude during the day, feeling of agitation and irritability and worried for his uncertain asylum status, constant fear of interrogation with feeling of insecurity if deported back to Iran [sic], experiencing nightmares with daily anticipatory anxiety. The psychologist recommends that the applicant undertakes psychological intervention for his current depression and anxiety symptoms but has not outlined what type of intervention is taken. Further, the applicant has not claimed to fear any harm in returning to Afghanistan on the basis of his condition, however it has been submitted that this condition will impact his ability to relocate within Afghanistan (a consideration which is not relevant based on the findings made). I note the psychologist has stated that the applicant is gradually improving. The applicant has also not outlined what, if any, medical assistance he would require upon return to Afghanistan. If the applicant continues to suffer from mental health issues upon his return to Afghanistan, I note that DFAT has reported that the health system has improved significantly since 2001 where 85 per cent of the population now have access to health services and 60 health facilities in the Hazarajat which offers basic health care but limited access to specialists within this region. I am not satisfied the applicant will face any harm upon return on this basis.

19    It seems to me from the above that the Authority plainly considered and dealt with the claim and was satisfied the appellant would have access to basic health care with limited access to specialists and would accordingly not suffer any harm on return to Afghanistan. Although the appellant criticises the Authority for not providing an indication or analysis of whether the health care the appellant could access would be sufficient, the difficulty is that the appellant failed to identify how or why the condition might affect him in Afghanistan and what medical treatment he would require on return. This was also allied with a statement that his condition was improving. There was no illogicality or legal unreasonableness in the Authority being satisfied that health care services would be available to the appellant and the finding was within the range of what could reasonably have been reached on the available material.

20    It follows that this ground also has no substance.

Ground Three

21    I have taken ground three out of turn. In the course of his careful and comprehensive submissions, counsel for the appellant submitted the Authority fell into jurisdictional error because it decided the appellant’s case on a basis different to that of the delegate and that this difference, in and of itself, required regard to the Authority’s power to invite a response from the appellant pursuant to s 473DC of the Migration Act 1958 (Cth). The appellant, correctly in my view, conceded that this ground cannot succeed at this level of the judicial hierarchy given the decision of the Full Court in DGZ16 v Minister for Immigration and Border Protection [2018] FCAFC 12 at [72]. It is appropriate, however, that the formal submission made by the appellant be recorded.

Conclusion

22    The four grounds of appeal having been rejected, the appeal must be dismissed.

23    The order of the Court will be the appeal be dismissed with costs.

Associate:

Dated:    15 March 2019