FEDERAL COURT OF AUSTRALIA

BIU18 v Minister for Home Affairs [2020] FCA 289

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs fixed in the amount of $3,500.

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

REASONS FOR JUDGMENT

MIDDLETON J:

1    At the hearing, the appellant made an application to the Court for an adjournment, which application was dismissed at the time of hearing and the reasons given at the time do not need to be repeated here.

2    On 27 February 2020, the Court ordered that:

(1)    The appeal be dismissed.

(2)    The appellant pay the first respondent's costs fixed in the amount of $3,500.

These are the reasons for these orders.

3    The appellant sought an extension of time to appeal from the orders and judgment of Humphreys J, made on 10 April 2019 and published as BIU18 v Minister for Home Affairs & Anor [2019] FCCA 1131 pursuant to r 36.05 of the Federal Court Rules 2011 (Cth). The appellant did not require an extension of time, and as such, the application is to be treated as a notice of appeal. The first respondent (the ‘Minister’) submitted that the appeal be dismissed as the ground of appeal does not make out appellable error in the primary judge’s reasons.

Background

4    The appellant, a citizen of Afghanistan, entered Australia on 6 December 2012, as an unauthorised maritime arrival. By letter dated 3 March 2016, the appellant was invited to apply for a Safe Haven Enterprise Visa (‘SHEV’). On 23 May 2016, the appellant applied for a SHEV.

5    The appellant’s claims for protection may be summarised as follows:

(1)    He is a Hazara Shia from Jaghori district, Ghazni province, Afghanistan.

(2)    In 2011, he witnessed a gun fight between the Taliban and American soldiers while he was travelling from his village to Ghazni city.

(3)    In early 2012, his older brother disappeared. His brother was an engineer and was required to travel on dangerous roads in other parts of Afghanistan. The appellant later heard that his brother was safe in the United States.

(4)    In August 2012, the appellant was looking after his father’s pharmacy and was approached by a man of Syed, Tajik or Pashtun appearance. The man asked if he was a student at Khodadat high school and whether he would poison the girls’ side of the school. The man said he would return the next day with money for the task. The man did not identify himself, but the appellant believed he was with the Taliban.

(5)    Two days later, the man returned with the poison and the money. The appellant told him that he did not want to perform the task asked of him and his father had told him not to. The man said ‘we are very dangerous’ and ‘they’ would kill the appellant and his family if he did not cooperate. The man left the appellant to consider the task and said he would return. The appellant’s father became worried and sent the appellant to Pakistan.

(6)    The man returned to the pharmacy and threatened to hurt the appellant and his family if he did not perform the task. The appellant’s father left the village and made arrangements to leave for Iran with his wife and youngest daughters. They stayed in Herat for some time and in March 2015, crossed the border and are presently living illegally in Iran.

(7)    The appellant feared serious harm, including death, from the Taliban and the man who asked him to attack the girls’ school. He also feared that people in his country would know that he had claimed asylum in Australia due to the ‘data breach’, and as a consequence, he would be in even more danger if returned to Afghanistan. The Taliban would attack him because he had become westernised during his stay in Australia, no longer strictly followed Muslim customs, and his education would make him a target for his Western mindset.

(8)    The appellant claimed to fear harm if returned to Afghanistan generally, and did not specify where he would return, if returned.

6    On 11 May 2017, a delegate of the Minister refused to grant the appellant a SHEV. On 28 February 2018, the Immigration Assessment Authority (the ‘Authority’) affirmed the decision under review.

THE AUTHORITY’S REASONS

7    The Authority had regard to the material referred to it by the Secretary under s 473CB of the Migration Act 1958 (Cth) (the ‘Act’). In regard to a submission received from the appellant on 1 June 2017, the Authority did not consider it to be new information as it contained legal argument and made reference to the delegate’s decision and matters that were before the delegate.

8    The Authority noted that it had received new information from the appellant, which post-dated the delegate’s decision. The Authority was satisfied that there were exceptional reasons to justify considering it, noting that the delegate’s decision was nine months old, the new information contained updated analysis on risks relevant to the appellant, and the security situation in Afghanistan remained fluid. The Authority was also satisfied that there were exceptional circumstances to justify considering new country information that it had obtained, which was published after the delegate’s decision.

9    The Authority accepted that a new claim advanced by the appellant, namely that returned asylum seekers were beaten by the Afghan authorities at the airport, could not have been raised earlier, and there were exceptional circumstances to justify considering it.

10    The Authority accepted that the appellant was a Hazara Shia from Afghanistan, that his parents and two younger sisters resided in Iran, and that he had family members including two other sisters residing in Iran, and that he had family members including two other sisters residing in Jaghori and another area of Ghazni. The Authority found that the appellant would return to his home area in Jaghori district.

11    The Authority accepted that the appellant was threatened by a man for not assisting him to poison a girls’ school, and this prompted his father to send him to Pakistan for his safety. However, on the basis of country information, the Authority was not satisfied that the man was in fact connected with the Taliban or any other organised insurgent group, noting that he did not declare himself to be so and there was no evidence to suggest that he or anyone else followed through on the threats or poisoning. While the Authority accepted that the appellant’s father was frightened, it doubted that he would have moved the family without first raising any alarm or complaint, particularly as the man appeared to be operating alone.

12    The Authority noted that in the five years since the appellant’s departure, there was no evidence that his family or anyone he knew had been threatened, harmed or questioned about the appellant or his father, and the Authority gave weight to the fact that two of the appellant’s sisters continued to reside in Jaghori. The Authority was satisfied that the appellant was not of any adverse interest to the Taliban and that neither the man nor any other individual group had turned their attention to the remaining family members. The Authority was not satisfied that the appellant’s residence in Australia in any way affected the level of risk upon return, or that he faced a real chance of harm for refusing to poison the school.

13    The Authority accepted that the Islamic State was a credible threat for Hazara Shias in Kabul and Herat, and that the Department of Foreign Affairs and Trade assessed Shias as particularly vulnerable when assembled in large and identifiable groups, such as demonstrations or mosque attendance during Shia religious festivals. However, the Authority had doubts about whether the appellant would practise his Shia faith in congregations or attend religious ceremonies upon his return, noting his evidence that he was not a strict follower and did not strictly follow the customs.

14    The Authority noted that Jaghori was located in the Hazarajat, a Hazara dominated region, and had regard to country information indicating that Hazara majority areas were considerably better than other parts of Afghanistan and no sources had recently mentioned Jaghori as a place of concern. The Authority considered the representative’s submissions about the Taliban, but was persuaded that there had been a shift in the Taliban’s ideology against mass casualty attacks on Shias. Further, it found that except for the Islamic State, which was reported not to have a presence in Jaghori or the Hazarajat, there was little evidence to suggest that Hazara Shias were targeted on the basis of their religion and/or ethnicity, or any other imputed profile or political opinion.

15    Given the infrequency of attacks in cities like Kabul and Herat, country information about the security situation in Jaghori and the Hazarajat, the inactivity of insurgent groups in those areas, and the Authority’s finding that the appellant would not seek to actively participate in Shia customs, the Authority considered that the likelihood of the appellant being targeted and harmed for his ethnic or religious profile was remote. Further, it did not accept that even if the appellant travelled within other parts of the Hazarajat, he would face a real chance of harm from the Taliban, Islamic State, or other insurgents on the basis of his racial and/or religious profile.

16    The Authority was satisfied that the appellant would be returning to Afghanistan with knowledge and personal experience of Afghan culture and life in Jaghori, and that any Western mannerisms would be minimal and would not put him at risk of harm. The Authority noted that the information before it did not indicate otherwise, nor did it indicate that persons were targeted for having studied science or other issues in the West.

17    The Authority accepted that the appellant’s details were included in a data breach and the fact that he had applied for asylum in Australia could be known by parties in Afghanistan, but found that there were no reports of returned persons having been targeted on that basis. The Authority accepted that the appellant would be returning as an educated Hazara returnee asylum seeker from the West, but was not satisfied that he was of any interest to the Taliban or other insurgent groups or individuals for any reason, including an anti-Taliban, pro-government or pro-Western opinion. Nor was it satisfied that he would have a profile or proximity to anyone with such a profile. The Authority was not satisfied that the appellant faced a real chance of harm as a failed asylum seeker or returnee who had lived outside of Afghanistan, including in a Western country where he received further education and was identifiably Hazara, nor for any related opinion or profile, even taking into account that his religious practice was not as strict as it once was and his details were published in the data breach. The Authority was satisfied that the appellant could take reasonable steps to modify his behaviour to avoid what it considered to already be a remote chance of persecution for reason of his residence, education and claims for asylum in the West and any related profile.

18    The Authority accepted that the appellant might pursue work and education opportunities outside of his village, but did not accept that he would face a real chance of harm from any insurgents or other persons in Jaghori or the Hazarajat on the basis of his refusal to poison the girls’ school, or for being a Hazara Shia returnee of any kind. The Authority was satisfied that the appellant could freely travel around the Hazarajat, and did not accept that he would be denied employment or other opportunities in the Hazarajat on the basis of his Hazara Shia profile or because he had lived for a significant period in the West.

19    The Authority considered the submissions regarding the appellant being young, unaccompanied and vulnerable, but was satisfied that he would be returning at age 22 to a place where he would have family support. The Authority found that the concerns about mental health and delayed progression of young asylum seekers were too speculative on the evidence before it, noting that there was no medical information provided about the appellant’s mental status. Further, it found that country information did not indicate that mental health treatment in Afghanistan was intentionally withheld from persons for any reason specified in s 5J(1)(a) of the Act.

20    In terms of the onward journey to Jaghori following the appellant’s return from Australia to Kabul, the Authority was satisfied that the appellant would pass through the Wardak area briefly, his situation was different from Hazaras resident or working there, and road incidents had tapered off in 2016 and 2017. The Authority therefore considered the possibility of the appellant being harmed as a Hazara, Shia and/or returnee on his single trip to Jaghori to be remote.

21    The Authority was satisfied that any time that the appellant would need to spend in Kabul and Kabul airport would be brief and found that any chance of his being harmed through a targeted attack or generalised violence before travelling to Jaghori was remote. Further, the Authority was not satisfied that the risk of harm from generalised violence in Jaghori and the Hazarajat was more than remote. Nor was it satisfied that the appellant would face a real chance of harm in Afghanistan as a consequence of criminality.

22    Turning to the complementary protection criterion, the Authority relied on its anterior findings to find that it was not satisfied the appellant would face a real risk of significant harm in relation to the poisoning matter and any perceived threats now or in the reasonably foreseeable future. Nor was it satisfied that there was a real risk of significant harm in or accessing his home area upon his return as a Hazara Shia, returnee asylum seeker from the West, due to a data breach, non-adherence to strict religious practices, or imputed political profile. The Authority was not satisfied that the appellant would face discrimination or other mistreatment that would result in adverse consequences to the appellant’s life, or that there was any evidence to indicate that he would be subjected to torture, or cruel, inhuman or degrading treatment. Nor was it satisfied that he would face a real risk of significant harm through targeted or generalised violence or criminality.

23    The Authority was not satisfied that any of the appellant’s claims gave rise to any independent or cumulative risk that he would face serious or significant harm. Given that the Authority had found that there was no real risk of significant harm in his home area and surrounding roads and area, the Authority did not consider whether the appellant could reasonably relocate to Kabul or Mazar-e-Sharif. The Authority therefore affirmed the decision under review.

PROCEEDINGS IN THE FEDERAL CIRCUIT COURT

24    By an application to show cause filed on 20 March 2018, the appellant sought judicial review of the Authority’s decision. By way of a further amended application filed on 25 September 2018, the appellant advanced one ground of review:

The Second Respondent (Authority) made a jurisdictional error by failing to exercise or failing to consider exercising s 473DC(3) of the Migration Act 1958 (Cth) (Act).

Particulars

At paragraph 2 when read with paragraph 65 of its decision, the Authority reached its decision on a basis different from the delegate;

At paragraph 8 of its decision, the Authority indicated that it had obtained new information about classes of persons of which the Appellant was a member;

At, in particular, paragraphs 27-32 and 61 of its decision, the Authority relied on the new information in reaching its decision;

In these circumstances, it was legally unreasonable for the Authority not to exercise or not to consider exercising s 473DC(3) of the Act so as to invite comment from the Appellant on the new information.

25    The primary judge held the application failed to make out jurisdictional error.

26    The primary judge considered whether the Authority acted unreasonably in failing to exercise its discretion pursuant to s 473DC(3) and erred in the manner identified in Minister for Immigration and Border Protection v CRY16 [2017] FCAFC 210 (CRY16). The primary judge held that this case did not fall within the ambit of CRY16, in circumstances where it was clear from the decision that the appellant was aware of the changing nature of the security situation and this would necessitate consideration of updated country information. The primary judge further noted that the country information related to a class of people and concluded that in all the circumstances the Authority’s omission to put the new information to the appellant was not legally unreasonable.

appeal IN THE FEDERAL COURT

27    The notice of appeal advances one ground of appeal:

1.    I believe the matters and factors referred to in the attached appellant’s submissions dated 29 March 2019 were not properly considered.

28    The submissions filed on 29 March 2019 (the ‘appellant’s submissions’) appear at Annexure B to the appellant’s affidavit filed on 7 May 2019. To make out this ground, the appellant must demonstrate that it is appropriate to draw the inference that the primary judge did not consider the appellant’s submissions. The Minister submitted that no such inference could be made on the material before the Court for two reasons.

29    First, the appellant’s submissions were identified by the primary judge at [3] of his Honour’s decision. The primary judge set out the gravamen of the appellant’s written and oral submissions at [12] to [14] and [18]. In particular, at [18], the primary judge set out why the appellant’s argument misconstrued the position. In circumstances where the primary judge’s decision reveals specific consideration of both the appellant’s oral and written submissions, the appellant’s contention that his submissions were not ‘properly considered’ is unsupported.

30    Insofar as the appellant’s ground may be construed as a contention that the primary judge’s reasoning reveals a lack of proper consideration of the appellant’s argument, I reject such a contention. I agree with the primary judge’s reasons that this case did not give rise to the error identified in CRY16.

31    The Authority found that the appellant would not face a real chance of serious or significant harm in Jaghori, whereas the delegate assessed whether the appellant would face harm in Kabul or Mazar-e-Sharif. This was in circumstances where the delegate made no express finding that the appellant would face harm in his home area of Jaghori, but instead assumed that the appellant would return to Kabul or Mazar-e-Sharif and assessed the risk of harm in those cities.

32    Before the primary judge the appellant (who was represented by Counsel) conceded that there is binding authority that departure from the delegate’s decision in and of itself does not result in a finding that it would be legally unreasonable for the Authority to fail to consider whether to exercise the discretion in s 473DC of the Act: see DGZ16 v Minister for Immigration & Border Protection [2018] FCAFC 12. Further, the appellant did not submit that the country information should have been put to the appellant pursuant to s 473DE(3)(a) of the Act.

33    The appellant also accepted that this case was factually distinct from CRY16, in which such an error was found to have been established. In CRY16 the Full Court held at [82]:

Our conclusion is that it was legally unreasonable, in the circumstances, not to consider getting documents or information from the respondent. The legislature is to be taken to intend that the Authority’s statutory power in s 473DC will be exercised reasonably. The failure to consider the exercise of that discretionary power lacks an evident and intelligible justification in circumstances where the Authority knew that it did not have, but the respondent was likely to have, information on his particular circumstances and the impact upon him of relocation to Beirut. The Authority did not have that information because the question of relocation, either at all or to Beirut, was not explored, or the subject of findings, by the delegate. The Authority’s failure to consider the exercise of that discretionary power meant that it disabled itself from considering what was reasonable, in the sense of “practicable”, in terms of relocation. In our opinion, as a consequence, the review by the Authority under s 473CC miscarried for jurisdictional error. (emphasis added)

34    In this case, the dispositive issue before the Authority was whether the appellant had a fear of harm in his home area. Both the delegate and the Authority accepted the appellant’s claim that his home area was Jaghori. He had an opportunity to provide such information as he considered relevant both during the interview with the delegate and afterwards. As found by the primary judge at [19] and [21], it could not be said that the appellant was not aware that the risk of harm in his home area would be considered by the Authority on review.

35    Further, unlike the position in CRY16, the appellant in this case had the opportunity to put forward information relevant to the issues on the review, including new country information addressing the risk of harm faced by Hazaras and the security situation in Jaghori.

36    Moreover, this was not a case where the Authority was prevented from making a legally available decision because it did not have the necessary information regarding the appellant’s circumstances. The appellant’s SHEV application outlined his circumstances in Jaghori, including his employment and residence history. Further, the Authority had country information about the security situation in Jaghori (and province in which it sits, namely, Ghazni), including country information provided by the appellant himself, the delegate and the Authority.

37    In all of the above circumstances, the primary judge was correct to hold that the error identified in CRY16 did not arise in the present case.

38    Accordingly, the appeal should be dismissed with costs.

39    The Minister submitted that in the event the appeal is dismissed, it is appropriate that fixed costs in the amount of $3,500 are awarded. That amount is less than the amount that can be claimed in a Short Form Bill for an appeal involving a migration decision (Federal Court Rules 2011 (Cth), item 15 of Sch 3), and the amount sought is reasonable and ‘proportionate to the nature, including the complexity, of the case’ (Bitek Pty Ltd IConnect Pty Ltd [2012] FCA 506 at [18]). Ultimately, the Court retains a broad discretion in relation to costs and it is permitted and open to fix costs in appropriate cases, such as the present matter (BAX16 v Minister for Immigration and Border Protection [2018] FCA 181 at [29]-[30]).

Associate:

Dated:    10 March 2020