FEDERAL COURT OF AUSTRALIA

ALX18 v Minister or Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1948

ORDERS

THE COURT ORDERS THAT:

1.    The name of the first respondent be amended to Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

2.    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

COLLIER J:

1    This is an appeal from a decision of the Federal Circuit Court of Australia in ALX18 v Minister for Home Affairs [2018] FCCA 3020 in which the primary Judge dismissed an application for review of a decision of the Immigration Assessment Authority (Authority) which in turn affirmed the decision of a delegate to the then Minister for Immigration and Border Protection (Minister) refusing to grant a protection visa to the appellant.

2    This judgment was reserved for some time pending the publication of the High Court of Australia’s decision in BVD17 v Minister for Immigration and Border Protection [2019] HCA 34, on the basis that issues which were raised in this case were being considered by the High Court. Judgment in BVD17 was delivered on 9 October 2019. On 24 October 2019, the legal representatives of the appellant advised that they did not seek to make further submissions referable to issues considered in BVD17, and did not consider that a further hearing would be appropriate. On 4 November 2019, the legal representatives of the Minister advised that they were content for the Court to deliver judgment in this matter without the need for further hearing or submissions, however the Minister relied on BVD17 to the extent that it could be relevant to any matter arising.

Background

3    The appellant is a citizen of Afghanistan. He is of Pashtun ethnicity, and a Sunni Muslim from Singasar which is near Kandahar City, Kandahar Province. In or around March 2013 the appellant fled Afghanistan. He arrived at Christmas Island, Australia in March 2013 as an unauthorised maritime arrival.

4    On 22 January 2016 and 1 February 2016, the appellant was advised by the Department of Immigration and Border Protection (Department) that protection claims from illegal maritime arrivals who arrived on or after 13 August 2012, would be considered under the new fast track assessment process. The appellant was invited to apply for either a Temporary Protection (subclass 785) visa or a Safe Haven Enterprise (subclass 790) visa (SHEV). In June 2016, the appellant lodged a SHEV application. On 29 May 2017, a delegate of the Minister for Immigration and Border Protection (delegate) refused to grant the visa.

5    The Department referred the decision to the Authority for review under Part 7AA of the Migration Act 1958 (Cth) (the Act) on 2 June 2017.

Decision of the Authority

6    The appellant provided a number of submissions to the Authority. The Authority summarised the appellant’s claims as follows:

•    The appellant is an Afghani national of Pashtun ethnicity who was born in Singasar village, Zhari district in Kandahar province and is a Sunni Muslim. He has no formal education but completed an English language course in Semanoo Pul, Kandahar city in 2012. His mother, three younger brothers, his elder sister and brother in law are residing in Loy Wala in Kandahar city, while his father, uncle and cousin are deceased.

•    The appellant’s father was a farmer in Singasar who grew grapes on the family land. When the fighting between the Taliban, the Afghan army and the Americans began in their area the family stayed in Singasar for a few months before they moved to Kandahar city where it was safer. They lived in Kandahar city for approximately 8 years during which time the applicant was employed as a pharmacy assistant for 4 years.

•    The appellant and his family moved back to Singasar in approximately 2011 after his father secured a government job around the end of 2010 which involved assessing and providing financial compensation to those whose property was destroyed by the war. The appellant’s family also received money which they used to partially rebuild their house.

•    The appellant’s father had been a government employee for a few months when he received a letter in 2011 telling him to stop working for the government. He thought the letter was not for him and continued working. However he received a second letter shortly afterwards which was more strongly worded claiming that he would not be left alone if he continued working in the same job.

•    Shortly after receiving the second letter, his father, uncle and cousin were shot by the Taliban when they were returning from his work at the district office by taxi. The appellant also received a threatening letter from the Taliban after the father’s memorial period because he was the eldest son and the Taliban thought that he would take over his father’s job. The appellant left the village and returned to Loy Wala in Kandahar city in 2012 where he stayed a short time before he travelled to Pakistan.

•    The appellant fears being targeted by the Taliban on return as his father was killed by the Taliban in 2011 due to his government work and the appellant was threated although he did not work for the government. He also fears harm on return to his village because the local people are aware that the appellant has been living in Australia and he will be perceived as not being a proper Muslim who is a foreigner and an agent and targeted by the Taliban.

7    On 15 June 2017, the appellant provided the Authority with a statement and notes which refuted the decision of the Minister. This material consisted of:

    Material regarding how the appellant came to know the detailed contents of the letters sent to his father.

    Documents demonstrating several new attacks in Kandahar which indicated a change in the security conditions of the region.

    References to six incidents which occurred in Kabul between January 2017 and May 2017, one of which post-dated the delegate’s decision.

    Travel advice updated on 13 June 2017 from the Australian Department of Foreign Affairs and Trade (DFAT) which advised against travel to any part of Afghanistan including Kandahar due to the on-going threat of terrorism.

8    The Authority considered this material found that it was more appropriately classified as “argument” rather than “information”. The Authority then considered whether there were exceptional circumstances for considering the new material. In summary, while the Authority accepted that there were exceptional circumstances for considering the material regarding how the appellant came to know about the contents of the letters, the new attacks in Kandahar and the six incidents in Kabul, it concluded that there were no exceptional circumstances for considering the DFAT travel advice of 13 June 2017. Nevertheless, the Authority obtained DFAT reports dated 18 September 2017 which provided details on the ‘situation for persons returning from the west and for Pashtuns’.

9    The Authority also made a number of factual findings. In relation to the appellant’s return to Afghanistan the Authority found at [12]:

The applicant states that he lived in Singasar until 2005 when he was approximately 10 years old, then moved with his family to Kandhar city where he lived and worked until 2011. He and his family returned to live in Singasar in 2011 but returned to Kandahar city in 2012 where his immediate family have continued to reside since his departure from Afghanistan. Although he states that the family still own a large area of land in Singasar there is no evidence that his family have returned to Singasar to live since his departure from Afghanistan. Given the applicant lived in Kandahar city from 2005 until his departure from Afghanistan in 2013 (with the exception of a small period of residence in Singasar in 2011-2012), and his family continue to reside there, I consider that Kandahar city is the area to which he will return.

10    Further, the Authority considered the appellant’s claims that his father was an elder in Singasar and was employed by the government to assess claims and make recommendations regarding the allocation of compensation to those whose property had been destroyed due to military operations and fighting. The Authority accepted these claims at [15]. The Authority also accepted at [26]:

After consideration of the applicant’s account and supporting country documentation I accept that the applicant’s father was of adverse interest to the Taliban and was killed due to his position as an elder who was is government employment; and the applicant was threatened by the Taliban in Singasar as a warning not to engage in similar employment. I also accept that he applicant left Singasar due to a fear of being killed…

11    However, the Authority did not accept that the appellant’s claims that he has “only stayed in Kandahar city for a short time to enable arrangements to be made for him to leave Afghanistan”. The Authority found that the Appellant had resided in Kandahar city for approximately one year. The Authority accepted that the “applicant was fearful of remaining in Singasar” however concluded at [25] of its reasons:

…I am not satisfied that the applicant feared harm in Kandahar city or that he was of interest to the Taliban in Kandahar city, where he was able to study, work and reside for approximately a year without incident prior to his departure from Afghanistan.

12    The Authority then referred to s 5J of the Act, which defined “well-founded fear of persecution” as involving a number of components including that:

•    the person fears persecution and there is a real chance that the person would be persecuted

•    the real chance of persecution related to all areas of the receiving country

•    the persecution involves serious harm and systematic and discriminatory conduct

•    the essential and significant reason (or reasons) for the persecution is race, religion, nationality, membership of a particular social group or political opinion

•    the person does not have a well-founded fear of persecution if effective protection measures are available to the person, and

•    the person does not have a well-founded fear of persecution if they could take reasonable steps to modify their behaviour, other than certain types of modification.

13    The Authority at [29] of its reasons considered that the appellant would not be targeted in Kandahar city as a result of his father’s employment. In particular, the Authority acknowledged that there were security incidents in Kandahar city but the targets of these attacks are generally “government officials and people associated with the international community, and civilian groups… with whom the applicant has no links”. The Authority stated that the appellant had not been in Afghanistan for six years and accordingly was not satisfied that the appellant would face harm in Kandahar city “due to an imputed political opinion arising from his father’s former employment or former position as an elder in Singasar”.

14    Further, the Authority considered the appellant’s claims that he feared harm due to being perceived as a foreigner who has resided in Australia and therefore not being seen as a “proper Muslim”. The Authority considered DFAT advice which indicated that those returning from Western countries “do not face a significantly higher risk of violence or discrimination than other Afghans with a similar ethnic and religious profile”. The Authority also considered UNHCR advice which reported individuals being killed or tortured as a result of them returning from Western countries and being seen as ‘foreigners or… spies for a Western Country”. In light of this advice, the Authority reached the following conclusion at [32] of its reasons:

I accept that the applicant would be returning to Kandahar city from which he has been absent for a significant period and where the population is overwhelmingly Pashtun. I also note that the reports and incidents cited by the UNHCR and DFAT regarding returnees do not refer to Kandahar city as an area where returnees are targeted on the basis of being perceived as Western. I note the applicant would be returning to a large city where he is part of the dominant ethnic and religious group, where he has resided for a significant part of his life and his family continue to reside. I am not satisfied that the applicant will be considered to be an agent or foreigner by the local Taliban or local community due to his residence in a Western country and targeted for this reason.

15     The Authority noted that Kandahar city has an international airport, and while ‘there are risks on the roads from insurgents and criminal violence for all ethnicities” the Authority was satisfied that the chance of the appellant being seriously harmed while returning to his home area was remote.

16    The Authority concluded that the appellant did not face a real change of harm if he returned to Kandahar city, did not meet the definition of a refugee in s 5H(1) of the Act, and did not satisfy s 36(2)(a) of the Act.

17    The Authority then considered whether the appellant was entitled to complementary protection but found that there were not substantial grounds for believing that he would face a real risk of significant harm upon return to Kandahar city. The Authority noted at [41] of its reasons that:

I have found that there is not a real chance that the applicant will face any harm in Kandahar city as a returnee from the West or due to an imputed pro-government profile arising from his father’s former employment, or on the basis of the general security situation or when returning to Kandahar city or for any other reason. As the ‘real risk’ test imposes the same standard as the ‘real chance’ test, for the reasons stated above I am also not satisfied that there is a real risk of the applicant suffering significant harm on the return to Kandahar city for those reasons. Having regard to the applicant’s circumstances and the country information before me, I am not satisfied that there is a real risk of the applicant suffering significant harm on the return to Kandahar.

18    Accordingly, the appellant did not meet the requirements of s 36(2)(aa) of the Act.

Decision of the Federal Circuit court

19    The appellant sought review of the Authority’s decision in the Federal Circuit Court of Australia. He relied on the following ground contained in his amended application for review:

1.    Breach of Procedural Fairness

The First Respondent breached procedural Fairness and did not act fairly in reaching to the unreasonable decision by did not accepting the evidence of the visa application in the absence of any contrary evidence to the applicant claim. This decision was taken in the absence of any logically probative adverse evidence or information as required by the principle of Procedural Fairness.

The First Respondent did not put sufficient weight to those evidence presented by the applicant and accepted by the First Respondent in reaching their decision.

The First Respondent did not have real insight of the relevant factors and information, security and political circumstances in Kandahar and in Afghanistan in general.

The First Respondent should have given the benefit of the doubt to the applicant and accept his account of the persecution and the chance of harm to him in Afghanistan as recommended by the UNHCR guidelines too. In contrast the decision was based on the First Respondent subjective opinion in absence of relevant contrary information.

The Second Respondent had sufficient information regarding the applicant father and uncle and cousin killing by Taliban but did not accept the evidence in totality and made an unfair choice of “pick and choose what they like” but reject the rest of the evidence in the absence of any probative contrary evidence or better say any evidence. The second respondent ignored everything and sealed the breaches, failure and error of the First Respondent by affirming the decision of the First Respondent. Consequently made the same error as the First Respondent and consequently breached the rule of Procedural Fairness.

(Errors in original.)

20    The primary Judge noted the appellant’s complaint that the Authority reached an unreasonable decision by not accepting his evidence (at [24]). However, his Honour concluded that “very little” evidence provided by the appellant was rejected by the Authority and that, by and large, all of the claims made by the appellant were accepted. Accordingly, his Honour found that the substance of the amended application was a complaint about the final determination arrived at by the Authority, that is, that the appellant would not face a real risk or chance of serious or significant harm if he were to return to Kandahar City.

21    His Honour considered that the final decision reached by the Authority was open to it. In particular his Honour observed:

26.    The reasons of the second respondent set out how it reached the conclusions that it did. There was a basis, demonstrated in the second respondent’s reasons, for its conclusions about the risk of harm to the applicant should he return to Kandahar. The foundations of that conclusion appear to be, first, the finding that the applicant had lived in Kandahar City for at least 12 months without adverse attention from the Taliban. That is a finding which was plainly open to the second respondent. Second, the lack of any information in the country information considered by the second respondent about the targeting of people such as the applicant by the Taliban in Kandahar City, and third, the second respondent’s conclusion about the risk faced by the applicant from generalised violence in Kandahar City. Each of the findings made by the second respondent and the conclusions that it drew from those findings were open to the second respondent. It might have been that another decision maker might have come to a different conclusion, but that is not the test.

22    Accordingly, his Honour considered that the decision of the Authority was not attended by jurisdictional error, and the application was dismissed.

Appeal to the FederaL Court

23    At the time the appellant filed his notice of appeal from the decision of the Federal Circuit Court he was unrepresented, and relied on only one ground of appeal, namely:

1.    The Honourable Federal Circuit Court judge erred in law.

24    Subsequently the appellant instructed lawyers, and filed an interlocutory application seeking leave to amend the notice of appeal and to raise on appeal a new ground of judicial review that was not argued before the primary Judge. This ground of appeal was as follows:

1.    That the learned judge of the Federal Circuit Court of Australia erred in failing to find that the Second Respondent’s decision was tainted by jurisdictional error because the Second Respondent failed to consider the Applicant’s claims both individually and cumulatively

Particulars

The Second Respondent did not in its decision at [27]-[42] expressly or impliedly consider the Applicant’s claims cumulatively as it was required to do.

25    The Minister opposed the interlocutory application, primarily because the Minister submitted that this ground of appeal lacked merit.

26    I granted leave for the appellant to rely on this new ground of appeal. Both parties relied on written and oral arguments in respect of this ground.

Submissions of the Parties

27    The appellant contended that the Authority failed to consider his claims both individually and cumulatively, in that:

    The Authority failed to consider an integer of the appellant’s claim, as notwithstanding the specific acknowledgement of a claim of harm on return to Singasar, the reviewer’s conclusions relate only to a proposed return to Kandahar.

    The Authority failed to consider the claims cumulatively. The appellant relied on three arguments to support this contention, namely:

(1)    As a matter of logic, it was not possible to consider all integers cumulatively when an integer has not been considered individually;

(2)    There was no express statement that the Authority reviewer considered the claims cumulatively. By contrast, the decision-maker expressly stated that “I have considered all of the claims of the applicant, both individually and cumulatively.” The appellant submitted that this wording was a common form of acknowledgement of the Htun obligations.

(3)    The conclusions of the Authority were expressed in the alternative rather than the cumulative. That is, at both [37] and [41] the risk of harm is presented as an item-by-item assessment that lacks the quality of an holistic assessment. That this is so follows from the use of the conjunction ‘or’. ‘Or’ signifies that each was considered individually, and that the standard of ‘real chance of harm’ was not reached on each integer individually. There is nothing to indicate that the combination, or cumulation, of the integer was then considered.

28    The appellant also contended that these errors crossed the threshold of materiality to become a jurisdictional error which would require the Court’s relief.

29    The Minister submitted, in summary that there was no error of the kind claimed by the appellant in that:

    The Authority did consider a discrete integer of the appellant’s claims, namely his residential history, the particular location to which he would return, and the ongoing connection of his family to the relevant region in Afghanistan. Such findings of fact were open to the Authority on the material before it.

    The appellant’s claims in respect of cumulative assessment fail, because his first argument failed.

    It was necessary for the reasons of the Authority to be read fairly and as a whole, and there was nothing to suggest that it considered its various findings in isolation of one another when arriving at its ultimate decision.

Consideration

30    In Minister for Immigration and Border Protection v DDK16 [2017] FCAFC 188, the Full Court (Gilmore, Markovic and O’Callaghan JJ) said as follows:

32.    Counsel appearing for the respondent ultimately, and quite properly, did not seriously dispute the Minister’s submission that no obligation to make a “cumulative assessment” arises where individual claims have been rejected as a factual matter, or have been the subject of findings that they did not or would not lead to ongoing problems for the visa applicant were he or she to return to a receiving country (and no claim is made that any of those individual findings were the subject of appellable error): see SZNKO v Minister for Immigration and Citizenship [2013] FCA 123; 140 ALD 78 at [135]- [136]; W352 v Minister for Immigration and Multicultural Affairs [2002] FCA 398 at [21]; Khan v Minister for Immigration and Citizenship [2000] FCA 1478 at [31].

33.    Counsel for the respondent adopted as correct the following submissions made on behalf of the Minister:

Broadly speaking, it can be accepted that there is an obligation to consider the parts of a Visa applicant’s claim for protection cumulatively. It can also be accepted that the same principles as to whether a visa applicant meets the criteria for protection as a refugee apply, by analogy, to the complementary protection criteria in s 36(2)(aa) of the [Act] [citing MZZUG v Minister for Immigration and Citizenship [2015] FCA 1151 at [47]].

The obligation to give cumulative consideration to a visa applicant’s claims arises as part of the decision-maker’s obligation to consider the case before them. In that context, a decision-maker is required to consider each integer of a visa applicant’s claims, whether they are raised expressly or arise clearly on the material [citing Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802; (2001) 233 FCR 136 at 139 [7]]. Further, as part of the decision-maker’s duty to address the case raised by the material before them, the decision-maker must consider the whole of the case put forward by the visa applicant [citing Khan v Minister for Immigration and Citizenship [2000] FCA 1478 at [31]]. There may be a combination of factors that create the profile of the person who meets (relevantly here) the complementary protection criteria [citing MZZUG at [47]], or causative factors that may not give rise to the relevant risk on their own, but may do so collectively [citing W352 v Minister for Immigration and Multicultural Affairs [2002] FCA 398 at [21]].

34.    In our view, however, such considerations have no application in a case such as this and are of no assistance to the respondent. It seems to us, as a matter of inexorable logic, that if, as is common ground here, all individual claims or bases for establishing an entitlement to a visa are dismissed (here, dismissed as not giving rise a real or significant risk of harm upon return to the country of nationality or receiving country), then no amount of “cumulative consideration” of those rejected claims is capable of producing a different result. It follows, in our respectful view, that the primary judge was wrong to hold otherwise.

35.    In any event, it is, with respect to the primary judge, clear on the face of the IAA’s detailed and thorough reasons that it expressly considered each of the various risks relied upon by the respondent in respect of both his refugee and complementary protection claims on a cumulative basis. On the refugee claim, for example, the IAA expressly refers and considers in detail submissions made by the respondent’s representative before it that a number of matters should be considered cumulatively (see [22]-[26] of the IAA reasons). It is not necessary to recite those passages, because counsel for the respondent did not seek to argue that the IAA’s treatment of the respondent’s refugee claim involved any error of law, by lack of cumulative reasoning or otherwise.

(Emphasis added.)

31    In this case I am not satisfied that the Authority failed in its task of considering the claims of the appellant, as he now claims in his amended notice of appeal.

32    First, while I granted the appellant leave to amend his notice of appeal to add the ground on which he ultimately relied, and both Counsel were able to advance detailed arguments referable to that ground, I note that the ground was generally unparticularised. To that extent, I have had to refer to the submissions of the parties to understand its import.

33    Second, to the extent that the appellant claimed that the Authority failed to have regard to an integer of his claim, I understand that this relates to the appellant’s claim that the Authority considered only the consequences of the appellant returning to Kandahar City, and did not look at the consequences if the appellant were to return to the village of Singasar. At [12] of its decision the Authority said as follows:

The applicant states that he lived in Singasar until 2005 when he was approximately 10 years old, then moved with his family to Kandahar city where he lived and worked until 2011. He and his family returned to live in Singasar in 2011 but returned to Kandahar city in 2012 where his immediate family have continued to reside since his departure from Afghanistan. Although he states that the family still own a large area of land in Singasar there is no evidence that his family have returned to Singasar to live since his departure from Afghanistan. Given the applicant lived in Kandahar city from 2005 until his departure from Afghanistan in 2013 (with the exception of a small period of residence in Singasar in 2011-2012), and his family continue to reside there, I consider that Kandahar city is the area to which he will return.

34    The Authority also referred to, and accepted, claims made by the appellant during the SHEV interview concerning the history of his family in Singasar. The Authority considered country information relating to the Taliban in the area. The Authority later found:

25.    During the SHEV interview the applicant’s account of his stay in Kandahar city following the receipt of the threat letter indicates that the applicant only stayed in Kandahar city for a short time to enable arrangements to be made for him to leave Afghanistan. I do not accept this account which is inconsistent with the timelines/evidence of the applicant at his entry interview, in the statutory declaration, during other parts of the SHEV interview and the follow-up by the delegate which all indicate that shortly after his father’s death in late 2011 and the receipt of the letter he left Singasar in early 2012 and lived in Kandahar city for approximately a year during which time he undertook and completed an English language course and worked in a car wash for approximately four months until his departure from Afghanistan without incident. While I accept the applicant was fearful of remaining in Singasar, I am not satisfied that the applicant feared harm in Kandahar city or that he was of interest to the Taliban in Kandahar city, where he was able to study, work and reside for approximately a year without incident prior to his departure from Afghanistan.

26.    After consideration of the applicant’s account and supporting country documentation I accept that the applicant’s father was of adverse interest to the Taliban and was killed due to his position as an elder who was in government employment; and the applicant was threatened by the Taliban in Singasar as a warning not to engage in similar employment. I also accept that the applicant left Singasar due to a fear of being killed. However I am not satisfied that the applicant was of adverse interest to the Taliban in Kandahar city due to his father’s former work where he was able to reside without being at risk of harm for approximately a year prior to his departure.

35    The appellant submits that it is incorrect to read the Authority’s reasons as finding that the appellant was more likely to return to Kandahar than Singasar. I disagree. This was precisely what the Authority found, as a fact, at [12]. The Authority made that finding after noting that the appellant and his family had not lived at Singasar for many years. I reject the appellant’s submission that this finding was a mere “prediction” rather than a factual finding.

36    To that extent I am satisfied that the Authority did consider this integer of the appellant’s claim, and found that he would return to Kandahar rather than Singasar.

37    It follows in my view that the appellant’s claim that the Authority failed to consider his claims cumulatively cannot stand. To paraphrase the Full Court in DDK16, once the bases for establishing an entitlement to a visa are dismissed, then no amount of “cumulative consideration” of those rejected claims is capable of producing a different result.

38    I further agree with the submission of the Minister that no issues of materiality arise, because no error in the reasoning of the Authority is established in respect of its consideration of the appellant’s claims.

39    The appellant’s ground of review relates solely to consideration of the appellant’s claims both individually and cumulatively. No other alleged errors were pressed by the appellant. In my view the decision of the primary Judge was not affected by error.

40    In light of my above findings and the ground of appeal pressed by the appellant, I do not consider it necessary to consider the reasoning of the High Court in BVD17 which concerned certificates issued under s 473GB of the Act.

Conclusion

41    The appropriate order is that the appeal be dismissed with costs.

Associate:

Dated:    25 November 2019