FEDERAL COURT OF AUSTRALIA

DAX18 v Minister for Home Affairs [2019] FCA 653

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be allowed.

2.    Orders (2) and (3) made by the Federal Circuit Court of Australia on 8 November 2018 be set aside and in lieu thereof order that:

(a)    The decision of the Authority dated 11 May 2018 affirming the decision not to grant the appellant a protection visa be set aside.

(b)    The matter be remitted to the Authority for determination in accordance with law.

(c)    The first respondent pay the applicant’s costs as agreed or taxed.

3.    The first respondent pay the appellant’s costs of the appeal as agreed or taxed.

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

REASONS FOR JUDGMENT

JAGOT J:

1    These reasons for judgment explain why I have concluded that the appellant’s appeal against the order of the Federal Circuit Court dismissing the amended application for judicial review of a decision of the Immigration Assessment Authority not to grant the appellant a protection visa should be allowed.

2    The relevant facts are these. The appellant arrived at Christmas Island on 10 December 2012 as a minor. He lodged an application for a Safe Haven Enterprise Visa on 28 October 2016. A statement accompanying that application from the appellant dated 30 September 2016 said that the appellant was a Hazara Shia born in Baba Jaghori, Ghazni Province, Afghanistan. He feared harm in Afghanistan as a result of being a Hazara Shia, a young man wanting to study and obtain an education, and a member of a family who own land and are thought to have money. He said that he had and still wanted to study medicine. Two of his brothers, who were studying, had been kidnapped by the Taliban and one was killed by the Taliban. The other brother returned to Jaghori and after that the appellant’s family moved to Kabul for safety. This brother was also killed in Kabul by two Hazara men who had been arrested by the police for the killing. The appellant was receiving counselling for the trauma his family had suffered. The appellant said he could not stay in his village as he would be kidnapped and killed for ransom or by the Taliban. If he relocated to Kabul he “would still have to travel back to see my family in Babah Jaghori” and “was required to attend his own village for example for funerals”. He said if he obtained a placement for training in medicine he would have to travel for his training and work which would be dangerous as he is an “easily identifiable Hazara person”. He said it was unsafe for him to live anywhere in Afghanistan.

3    The Minister’s delegate refused the visa application on 17 November 2017. The delegate accepted that the appellant was a Hazara Shia Muslim who was born and resided in Jaghori district and whose immediate family had relocated from that district to Kabul following the appellant’s departure in 2012. The delegate also accepted that the appellant’s family continued to own property in the Jaghori district which was managed by the appellant’s uncle. The delegate accepted that two of the appellant’s brothers had been kidnapped by the Taliban and one was killed by the Taliban while one escaped but was later killed in Kabul in relation to financial matters. Two Hazara men were also arrested and then released in relation to the killing of the appellant’s brother. The delegate accepted that there was more than a remote risk of harm to the appellant if he returned to Jaghori and travelled to Kabul for his education but concluded that the appellant would not be at real risk of serious harm in Kabul and it was reasonable in the circumstances for the appellant to relocate to Kabul.

4    A submission on behalf of the appellant dated 12 December 2017 was made to the Authority. Amongst other things the submission dealt with the issue of the appellant’s relocation within Afghanistan to Kabul, Mazar-e Sharif and Herat. In respect of Mazar-e Sharif and Herat the submission provided information about safety generally in those cities and said, in the context of an explosion outside a mosque in Mazar-e Sharif, that “as a practicing Shia, the chance of [the appellant] suffering harm [there] is real”. The submission also noted that the appellant had “no family or connections” in either Mazar-e Sharif or Herat and “would not be able to find employment in these cities and as such would suffer cruel and degrading treatment on the streets”.

5    In its reasons for decision the Authority noted at [10] that the submission “makes argument in relation to relocation generally to Kabul, Mazar-e-Sharif and Herat” and referred to country information which was not new information. The Authority also said that the submission “refers to the [appellant’s] personal circumstances which were before the delegate and are not new information” and that “[al]though the submission refers to cities other than Kabul (which is the city that the delegate considered for relocation), I am satisfied that the issues of relocation and reasonableness considered in the submission are not new information”.

6    At [19] of its reasons the Authority accepted that the appellant’s immediate family had relocated from Jaghori to Kabul and that although the appellant “has extended family in Jaghori, his immediate family is no longer there and he has not claimed that he would have to, or want to, return to Jaghori if he returns to Afghanistan”. Further, he claimed that before he left Afghanistan he intended to study in Kabul but was scared of travelling between Jaghori and Kabul. He had told the delegate that his family had not suffered harm in Kabul other than the killing of his brother. The Authority then said that having regard to these factors it was not satisfied that the appellant has any ties to Jaghori or that there are any reasons why he would need, or want, to return to Jaghori district or Ghazni province if he returns to Afghanistan and that if he returns to Afghanistan “he will want to return to his family in Kabul”. The Authority, said at [20] that, accordingly, it “assessed his claims on the basis that he will be returning to Kabul”. At [28] the Authority recorded its satisfaction that the appellant faced a real chance of persecution if he returned to Kabul on the basis of the appellant being a Shia and Hazara. The Authority then noted that at his interview with the delegate the appellant had said he could not relocate in Afghanistan “because Hazaras are targeted anywhere in the country”. The Authority then discussed Mazar-e-Sharif noting at [29] that in the submission to the Authority the appellant said Mazar-e-Sharif is not safe. The Authority concluded at [45] that the appellant does not face a real chance of persecution in Mazar-e-Sharif for any reason. The Authority dealt with the appellant’s relocation to Mazar-e-Sharif and said at [58] that the appellant “did not make any submission to the delegate in relation to his specific personal circumstances and relocation”. The Authority noted at [59] that the appellant did not have any immediate family, tribal network or existing community support networks in Mazar-e-Sharif but there is a sizeable Shia and Hazara population there and he would be able to “link into the Hazara community in Mazar-e-Sharif”. At [60] the Authority said that as a single able-bodied man the appellant’s education and work experience would assist him to find employment or access further education in Mazar-e-Sharif. At [61] the Authority said it took into account that the appellant’s father had stable employment as well as an income from farming and had previously supported two sons while they were studying and the appellant had not claimed that he would not be able to rely on his father for some assistance if necessary. At [64] the Authority recorded its conclusion that it was reasonable in the appellant’s circumstances for the appellant to relocate to Mazar-e-Sharif. Accordingly, the Authority affirmed the decision not to grant the appellant a protection visa.

7    In reasons for judgment dismissing the appellant’s application for judicial review, DAX 18 v Minister for Home Affairs & Anor [2018] FCCA 3230, the primary judge rejected the appellant’s contentions that the Authority’s decision was legally unreasonable (ground 1), that the Authority had failed to consider each integer of the appellant’s objections to relocation (ground 2), and unreasonably failed to exercise or consider the exercise of its powers under s 473DC(3) of the Migration Act 1958 (Cth) (ground 3). In dealing with one particular of ground 2, in respect of the appellant’s claim in his submission to the delegate in 2016 that even if he relocated to Kabul he would still have to travel back to see his family in Jaghori and “am required to attend to my own village for example for funerals”, the primary judge said this at [40]:

The second alleged impediment was the travelling to see the applicant’s family in Jaghori. This was in part supported by the paragraph in the statutory declaration that has been referred to above. It was suggested that the Authority had misunderstood the applicant’s evidence or had failed to have a real and genuine engagement with the applicant’s claims and evidence in that regard. It is apparent from the Authority’s reasons, as referred to above, that the Authority twice referred to the fact that the applicant’s family had moved from Jaghori to Kabul. The applicant’s reference to travelling to Jaghori was in the context of seeing his family. In those circumstances, as referred to above, there was no misunderstanding by the Authority of the applicant’s claims and evidence. Further, it is apparent that the Authority considered the issue of the applicant visiting his family, who are now in Kabul, in its reasons as referred to above. There was no failure to take into account the applicant’s claims and evidence in that regard in considering reasonable relocation. Further, there was no failure by the Authority to have a real and meaningful engagement with the applicant’s submissions in this regard. Further, there was no failure to consider this integer.

8    In the notice of appeal to this Court the appellant relied on three grounds, being the Authority’s failure to exercise or consider exercising its powers under s 473DC(3) of the Migration Act (grounds 1 and 2) and failure to consider each integer of the appellant’s objections to relocation on the basis of the same particulars raised in the Federal Circuit Court (ground 3) including that the Authority failed to consider the appellant’s claim that he would need to travel back to see his family in Jaghori and would be “required to attend to my own village for example for funerals” (ground 3.3).

9    I propose to deal with ground 3 insofar as it alleges that the Authority failed to consider an integer of the appellant’s claims, namely, that if he returned to Afghanistan he would be required to travel back to see his family in Jaghori and would also have to do so for example for funerals (that is, ground 3.3). The Minister submitted the following about this aspect of the appeal:

In respect of return to Jaghori, it is evident reading [19] and [37] of the Decision that the IAA implicitly rejected the idea that the appellant would need to return to Jaghori given that all of his immediate family were living and working in Kabul. In particular, the IAA’s reasons at [19] address implicitly the tension in the appellant’s evidence between the assertion that he would be required to return to Jaghori and the fact that all of his immediate family were in Kabul. The appellant had already stated, and the IAA had accepted, that a relative of the appellant’s father was looking after the family farm in Jaghori. In those circumstances, it was open to the IAA conclude that the appellant did not need to return to Jaghori. The primary judge was correct to conclude that the appellant’s claims were addressed.

10    Paragraphs [19] and [37] of the Authority’s reasons are in these terms:

19. While the applicant was born and raised in Jaghori, he claims, and I accept, that his parents and remaining siblings have relocated to Kabul. Although he has extended family in Jaghori, his immediate family is no longer there and he has not claimed that he would have to, or want to, return to Jaghori if he returns to Afghanistan. He has claimed that before he left Afghanistan he intended to study in Kabul but was scared of travelling between Jaghori and Kabul. While he claims that there is ongoing violence against Hazaras in Jaghori he told the delegate that his family has not suffered any harm in Kabul other than the incident with S which is discussed further below. Having regard to these factors, I am not satisfied that the applicant has any ties to Jaghori or that there are any reasons why he would need, or want, to return to Jaghori district or Ghazni province if he returns to Afghanistan. I consider that if the applicant returns to Afghanistan, he will want to return to his family in Kabul.

37. The applicant told the delegate that his father’s income from the family farm was sufficient to support the family in Jaghori as well as the applicant’s older brothers while they were studying in Kabul. His father now works in Kabul and also maintains the family farm with the assistance of a relative, while the applicant’s brother is operating a money exchange business. When asked how this business was going, the applicant said that it is not bad. He also said that he himself has been working as a bricklayer in Australia. The applicant has not suggested that he will be unable to pay for an air ticket. I am satisfied that the applicant has access to finance and will be able to finance the air ticket from Kabul to Mazar-e-Sharif. Having regard to these factors I am satisfied that the applicant does not face a real chance of harm accessing Mazar-e-Sharif.

11    The problem with the Minister’s submission, and [40] of the reasons for judgment of the primary judge, is the clear statement of the Authority in [19] of the reasons that the appellant had not claimed that he would have to, or want to, return to Jaghori if he returns to Afghanistan when in his statement to the delegate the appellant had said at [25] that his family had moved to Kabul for safety after one of his brothers had escaped from the Taliban (which must have been in or about late 2012) and at [40] that:

Even if I were to relocate to Kabul I would still have to travel back to see my family in Babah Jagori. We can’t sell the land. I am required to attend to my own village for example for funeral.

12    Given these matters I am unable to accept the Minister’s submission that Authority’s reasons at [19] implicitly address the tension in the appellant’s evidence between the assertion that he would be required to return to Jaghori and the fact that all of his immediate family were in Kabul. This submission cannot be reconciled with the Authority’s statement in [19] that the appellant “has not claimed that he would have to, or want to, return to Jaghori is he returns to Afghanistan”, as well as the statements in that paragraph that the Authority was not satisfied that the appellant has any ties to Jaghori or that there is any reason why he would need or want to return to Jaghori district or Ghazni province if he returns to Afghanistan.

13    It may or may not be the case that there is tension between the fact that the appellant’s immediate family had relocated to Kabul and his statement to the delegate saying that he would “still have to travel back to see my family in Babah Jagori”. What is clear, however, is that the Authority was not purporting to resolve that tension in its reasons. To the contrary, the Authority was saying that the appellant had not claimed he had any reason to return to Jaghori (when, in fact, he had so claimed) and had no ties to and would not need or want to do so (when the appellant had said he would need to do so, for example, to attend funerals). For these reasons I consider the primary judge erred at [40] in dismissing this aspect of the application for review on the basis that the Authority had considered this integer of the appellant’s claims because it had twice referred to the appellant’s family having relocated to Kabul. In the statement he made to the delegate the appellant referred to the fact his immediate family had relocated to Kabul and asserted that he would need to visit family in Jaghori for reasons including funerals.

14    If these statements involve any potential inconsistency or tension, it is not for me to resolve. That was a task the Authority alone could undertake. The relevant point for present purposes is that, contrary to the submissions for the Minister and the conclusion of the primary judge, it must be inferred from the Authority’s reasons that it did not undertake that task. I do not accept the Minister’s submission that the last sentence of [19] of its reasons supports an inference that the Authority considered the appellant’s claims in this regard. The last sentence starts with the words “[h]aving regard to these factors”, which must be a reference back to the earlier incorrect statement in [19] that the appellant had not claimed that he would have or want to return to Jaghori if he returned to Afghanistan.

15    The error is not a mere error of fact. It is that the Authority failed to consider a clearly articulated claim potentially determinative of the application for the protection visa. The Authority proceeded on the basis that the appellant had not claimed that he would have to or want to return to Jaghori when the appellant had claimed that he would need to return to Jaghori to see his family and for example for funerals. As I have said, there may or may not be some tension between these statements of the appellant and the fact that his immediate family had relocated to Kabul. It may or may not be the case that the appellant was referring to his extended family in Jaghori and the need to return there for funerals of members of his extended family. What cannot be doubted is that the appellant had claimed that he would need to travel to Jaghori if he returned to Afghanistan, notwithstanding his evidence that his immediate family had relocated to Kabul, and the Authority made no reference to this claim, stated expressly to the contrary, and proceeded to reach its conclusions, it must be inferred, without regard to this claim.

16    In Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802; (2001) 194 ALR 244 at [42] Allsop J (as he then was) explained the difference between an errant finding of fact and a failure to consider a claim or its component integer. In Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 197 ALR 389 at [24] and [25] Gummow and Callinan JJ identified that a failure to “respond to a substantial, clearly articulated argument relying upon established facts” may constitute a denial of natural justice or a constructive failure to exercise jurisdiction. In NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1 the Full Court of the Federal Court referred with approval to Allsop J’s reasoning in Htun at [42]. In AYY17 v Minister for Immigration and Border Protection [2018] FCAFC 89 the Full Court said:

18. It is common ground that nothing in the statutory constraints to be found within Pt 7AA of the Migration Act (as discussed, for example, in BMB16 v Minister for Immigration and Border Protection (2017) 253 FCR 448 per Dowsett, Besanko and Charlesworth JJ) affects the relevant existing case law on this topic, namely, the duty to consider claims and issues arising from material before it as that law applies to the Administrative Appeals Tribunal under Pt 5 of the Migration Act. In that regard, we note that:

•    The Tribunal review function requires it to consider all claims made by an applicant and its essential components or integers: Htun v Minister for Immigration and Multicultural Affairs (2001) 233 FCR 136 per Allsop J (as the Chief Justice then was) (at [42]), with whom Spender J agreed.

The Tribunal is only required to consider such claims where they are either:

(a) the subject of substantial clearly articulated argument, relying on established facts; or

(b) clearly emerge from the materials: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 144 FCR 1 per Black CJ, French and Selway JJ (at [55] and [68]) and AWT15 v Minister for Immigration and Border Protection [2017] FCA 512 per Barker J (at [67]).

•    These principles apply to the IAA regime: Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176 per Kenny, Tracey and Griffiths JJ (at [79]) where their Honours said:

... A body such as the IAA, which is conducting an inquisitorial review process in which there is a claim for protection under s 36(2)(a) of the [Migration] Act must not only consider and determine the case as articulated by the protection visa applicant, but also do so in relation to an unarticulated claim which is nevertheless raised clearly or squarely on the material before that review body (see NABE at [58]-[61] per Black CJ, French and Selway JJ).

(Emphasis added.)

17    In oral submissions the Minister accepted that the reasoning in AYY17 was consistent with principle. In my view, in the present case it must be inferred that the Authority failed to consider a clearly articulated claim that the appellant had made that if he returned to Afghanistan he would have to return to Jaghori to visit family and for example for funerals. I consider the primary judge erred in concluding that the Authority had not made a jurisdictional error for this reason in respect of a material matter that was potentially determinative of the appellant’s application for a protection visa.

18    As a result the decision of the Authority must be set aside.

19    In these circumstances I will deal only briefly with the appellant’s other grounds of appeal.

20    As to ground 1.1, a failure to consider exercising or to exercise the power in s 473DC(3) of the Migration Act to invite a person to give new information can constitute jurisdictional error on the ground that the failure was legally unreasonable in all the circumstances: Minister for Immigration and Border Protection v CRY16 [2017] FCAFC 210 and Minister for Immigration and Border Protection v DZU16 [2018] FCAFC 32.

21    In the present case I am not persuaded that any such failure would be legally unreasonable. CRY16 and DZU16 are distinguishable on their facts. In the present case the appellant’s submission to the Authority expressly raised the possibility of the appellant relocating to Mazar-e-Sharif. I do not accept the submissions for the appellant that the submissions merely foreshadowed the possibility of relocation to Mazar-e-Sharif so that the Authority was bound to invite or consider inviting the appellant to provide new information about how his personal circumstances might affect the reasonableness of such a relocation. I also do not accept that in dealing with relocation the submission did not also deal with the risk of the appellant being persecuted in Mazar-e-Sharif. In my view, in circumstances where the appellant had chosen to put a submission to the Authority that it would not be safe for him to relocate to Mazar-e-Sharif it was not legally unreasonable for the Authority not to invite or consider inviting the appellant to provide new information about how his personal circumstances might affect the reasonableness of such a relocation. The statutory context, in particular the confines of the capacity of the Authority to consider new information in s 473DD of the Migration Act, does not support a contrary conclusion. Section 473DD confines the decision-making power of the Authority. The issue in the present case is the reasonableness or otherwise of the Authority considering the exercise of or exercising its power to invite new information under s 473DC in circumstances where the appellant had chosen to raise the issue of Mazar-e-Sharif in the submissions made to the Authority on the appellant’s behalf. It was not irrational or illogical for the Authority to proceed on the basis that, the appellant having raised the issue of the appellant residing in Mazar-e-Sharif, the appellant had said all he wished to say on any such possibility. The appellant’s own submission provided an evident and intelligible justification for such an inference on the Authority’s part.

22    As a result it is unnecessary to resolve the Minister’s application for leave to raise a fresh issue, namely that the appellant had not proved the Authority failed to consider exercising the power under s 473DC. If it had been necessary to resolve, I would have refused leave because had the Minister put the appellant on notice of that contention below, the appellant could have taken steps to obtain evidence to assist it in proving the fact in dispute.

23    As to ground 1.2, it was also not legally unreasonable for the Authority to conclude that it was not unreasonable for the appellant to relocate to Mazar-e-Sharif. The Authority referred to a range of information about conditions in Mazar-e-Sharif, some of which supported an inference that as a Hazara and able-bodied single male the appellant would be able to live in Mazar-e-Sharif despite not having family there (at [52]) and some of which suggested to the contrary (at [55] and [56]). The Authority also referred to the resources of the appellant’s family at [61] and said it gave weight to these resources in reaching its conclusion. In these circumstances it cannot be said that the Authority’s conclusion lacked an evident and intelligible justification.

24    Ground 2 involves a re-characterisation of the alleged jurisdictional errors identified in ground 1 as involving a constructive failure by the Authority to exercise its jurisdiction. For the same reasons that I did not accept ground 1 I do not accept ground 2.

25    Ground 3.1 concerns the fact that the Authority’s reasons do not refer to the appellant’s claim in his statement to the delegate at [42] that if he obtained a placement to study medicine he would have to travel for his training and work and would be in danger in so doing as an easily identifiable Hazara person. Ground 3.2 concerns the fact that the Authority’s reasons do not refer to the appellant’s claim that he had been receiving support from counsellors in relation to the trauma his family had suffered. I am persuaded by the Minister’s submissions that it should be inferred that the Authority did not consider these claims to be sufficiently material to justify reference in its reasons. The issue of the appellant studying medicine involved mere speculation that he might obtain a placement to do so at some time in the future. As the Minister submitted, this speculative proposition did not amount to evidence or a claim that required consideration, let alone express reference in the Authority’s reasons. The issue of the appellant receiving counselling, as the Minister also submitted, did not engage with any claim the appellant made. The statement, as it stood, went nowhere. Ground 3.3 has been discussed above.

26    For these reasons I conclude that the ground 3.3 of the appellant’s notice of appeal should be upheld as establishing a jurisdictional error by the Authority in deciding to affirm the decision not to grant the appellant a protection visa. Orders must be made to allow the appeal and to set aside the Authority’s decision and remit the matter to the Authority for decision in accordance with law, and for costs.

Associate:

Dated:     13 May 2019