FEDERAL COURT OF AUSTRALIA

ANT18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 292

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 is dismissed.

3.    The appellant must 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

(Revised from Transcript)

FARRELL J:

Introduction

1    This is an appeal from a decision of the Federal Circuit Court of Australia (FCCA) dismissing an application for judicial review of a decision by the Immigration Assessment Authority (or IAA) to affirm a decision of a delegate of the Minister for Home Affairs (as the responsible Minister was then known) not to grant the appellant (also referred to as ANT18) a Safe Haven Enterprise (subclass 790) visa or (SHEV).

Background

2    ANT18 is a national of Afghanistan. He entered Australia in December 2012 as an unauthorised maritime arrival.

3    ANT18 made an application for a SHEV dated 25 April 2016 (received by the Department of Immigration and Border Protection on 28 April 2016). The visa application was prepared with the assistance of a registered migration agent. It was accompanied by ANT18’s statutory declaration also dated 25 April 2016.

4    In his statutory declaration dated 25 April 2016, ANT18 claimed that:

(1)    He is of Hazara ethnicity and Shia religion.

(2)    His home village was subject to repeat attacks from Kuchi, who are a nomadic group of Pashtun tribal militia, said to be closely affiliated with the Taliban.

(3)    His father was killed in such an attack in 2010. His father was wrongly accused of being actively involved in the fighting against the Kuchi/Taliban.

(4)    On the basis of the accusation against his father, the Kuchi/Taliban told the village elders that his father’s family members would be targeted should they locate them. In a letter given to the village elders, ANT18 was personally threatened to either join the Taliban or be “prosecuted”.

(5)    After the Kuchi attacked his village in 2012, when many people were killed, he knew that he had to leave the area as it was very likely that he would be recognised and killed because he was a Shia-Hazara and because the Taliban had accused his deceased father of fighting against the Kuchi/Taliban.

(6)    He sold everything he had in the village and fled to Kabul where he stayed for about four months, but he never felt safe. He was worried that the Kuchi/Taliban would harm him even there. He left Afghanistan in December 2012, travelling to named countries before getting on a boat to Australia.

(7)    His wife, children, mother and siblings “recently” fled from Afghanistan to Pakistan.

(8)    He is a targeted man. He believes that he will be killed by the Kuchi/Taliban because of the accusation against his father and he has been involved in fighting against them in [name] in the past few years. He fears harm upon return to Afghanistan as a Shia, as a Hazara and as a member of a particular social group of “failed Afghan asylum seekers”. As a member of the latter group, he will be accused of being a supporter of the West and that will put him and his family in danger.

(9)    He cannot relocate within Afghanistan as even in Kabul he will be at risk due to the wide spread influence of the Taliban over the entire country. He fears his personal details have already been circulated throughout Taliban networks and his Hazara ethnicity is also easily recognisable meaning he can never be safe.

5    ANT18 attended an interview with the delegate on 15 March 2017. On 23 March 2017 the delegate refused to grant a SHEV to ANT18.

6    The delegate’s decision was referred to the Authority for review pursuant to s 473CA of the Migration Act 1958 (Cth).

IAA’s decision

7    On 11 January 2018, the IAA affirmed the delegate’s decision and recorded its reasons in its decision record (or DR).

8    The Authority recorded that it had regard to recent country information which it had obtained.

9    The Authority relevantly found as follows:

(1)    ANT18 is of Hazara ethnicity and of Shia religion: DR[14]

(2)    ANT18’s family did not reside in Pakistan. ANT18’s home area in Afghanistan is Kabul and his family continues to live there: DR[26]

(3)    Having regard to the terms of s 5J of the Migration Act, ANT18 did not have a well-founded fear of persecution. The Authority found that ANT18 did not have a specific profile with the Kuchi. While, based on country information, there was a credible risk of serious harm in his home village, that risk was remote. In any event, the Authority was not satisfied that ANT18 or his family would return to his home village: DR[34]-[35]. There was no real chance of ANT18 being harmed by Kuchi nomads, Pashtun tribal militia or the Taliban in Kabul: DR[36]-[37]. Having regard to country information, there was no real chance that he would suffer significant harm based on his religion and/or ethnicity (DR[56]-[57]) or as a returnee from the West or for any other related actual or imputed political opinion (DR[69]). It was also not satisfied that there was a real chance of significant harm because of generalised or insurgent violence: DR[72]-[73].

10    Having regard to the first ground of appeal, it is useful to set out the terms of DR[72]-[73]:

72.    On a separate and independent basis, in terms of generalised and insurgent violence, I acknowledge that low profile civilians have been victims in attacks. However, on the basis of the information before me, I am satisfied that the chance or risks the applicant may face in relation to generalised or insurgent violence would not be faced by the applicant for the essential and significant reasons of his race, religion, nationality, membership of a particular social group or political opinion, but rather a consequence of the insurgency and the ongoing insecurity present in Kabul and the country overall. Accordingly, in terms of the remote chance of the applicant being harmed in generalised or insurgent violence, I find that s.5J(1)(a) and 5J(4)(a) would also not be satisfied.

73.    For clarity, the applicant claimed that his whole family left [name of village], and that his family property is gone/destroyed, and all livestock has been sold. I am satisfied that the applicant and his family would not seek to return to [name of village], and there are no reasons for the applicant and his family to return to that area. In that context, I consider it is reasonable for the applicant to remain in Kabul to avoid any chance or risk of harm they may face in travelling to or visiting their former home area, which continues to severely impacted by the insurgency

11    Accordingly, the Authority found that ANT18 was not a refugee as defined in s 5H(1) of the Migration Act and Australia does not owe him protection obligations under s 36(2)(a) of the Migration Act: DR[74]

12    The Authority also found that ANT18 was not owed complimentary protection pursuant to s 36(2)(aa) of the Migration Act as there are not substantial grounds for believing that, as a necessary and foreseeable consequence of being returned from Australia to Afghanistan, there is a real risk that he will suffer significant harm: DR[80]. The Authority considered the meaning of “significant harm” defined in s 36(2A) of the Migration Act: DR[76].

13    In the context of the first ground of appeal, it is useful to set out the Authority’s findings at DR[77]-[79] (footnotes omitted) :

77.    I have found that Kabul is the applicant’s home area, and that he would not face a real chance of serious harm in Kabul for reasons related to his time in [name of village], the killing of his father, or due to the past conflict with the Kuchis or Taliban in his former home area. I have also found there is no real chance of the applicant facing serious harm for reasons of his religion, ethnicity, as returnee from the west (Australia), as a person that sought asylum, any related political opinion or profile, for any reason related to his medical condition, or in generalised and insurgent violence. For the same reasons, and having regard to the above considerations, I find there is no real risk of the applicant facing significant harm for these reasons in Kabul. I have found they would not return to their former home area in [name of village] and have no reasons to do so. I have found it would be reasonable for the applicant and his family to remain in Kabul to avoid any chance or risk of harm in visiting their former home area, which I accept is impacted by the insurgency and general insecurity.

78.    I have accepted the applicant may face some discrimination in Kabul due to his religious and/or ethnic background, however I am satisfied that this would be low level, and that there is no real chance he would be prevented from finding work, accommodation or access to medical treatment on return to Kabul. While I accept that if the applicant were exposed to societal discrimination it would be challenging and frustrating for him, I do not accept it would amount to the death penalty, or result in an arbitrary deprivation of life, or torture. I also do not accept that such discrimination would involve pain or suffering that is cruel or inhuman in nature, or severe pain or suffering, or would be intended to cause extreme humiliation, even when considered in a cumulative sense. It follows that I do not accept that any discrimination he may experience on return to Kabul would constitute significant harm.

79.    I have also found there is not a real chance of the applicant facing serious harm in generalised and insurgent violence within Kabul. For the same reasons, I am satisfied there is not a real risk of the applicant facing significant harm in the context of generalised and insurgent violence in the country. While not necessary to conclude upon given my earlier findings, in terms of generalised and insurgent violence in the country, and having regard to his lack of any other adverse profile, I am satisfied these risks are faced by all citizens of Afghanistan. Thus, I am satisfied these risks are faced by the population of the country generally and are not faced by the applicant personally, and as such under s.36(2B)(c) there would also be taken not to be a real risk that the applicant will suffer significant harm in Afghanistan for these reasons.

FCCA Proceedings

14    By an application to show cause filed in the FCCA on 13 February 2018, ANT18 sought judicial review of the Authority’s decision. ANT18 and the Minister were both represented by counsel at the hearing of that application.

15    By way of written submissions, ANT18 pressed an amended ground three as follows:

The reviewer committed an error of law in failing to consider section 36(2B)(b) and whether it applied to the Applicant. Specifically, the reviewer failed to ask if the Applicant obtain, from an authority of Afghanistan, such protection that there would not be a real risk that the Applicant would suffer significant harm, as defined in section 36(2A).

16    The FCCA Judge granted ANT18 leave to rely upon the amended ground three and dispensed with the need to file an amended application. Counsel for ANT18 confirmed that he pressed only that ground.

17    The FCCA Judge summarised and considered ANT18’s arguments at J[29]-[31] as follows:

In substance, [counsel for ANT18] referred to the difference between the concepts of significant harm and serious harm. [Counsel for ANT18] referred to the requirements of s 36(2B) of the Act. [Counsel for ANT18] drew attention to the finding in relation to s 36(2B)(c) of the Act as well as drawing attention to the findings that were made by the Authority in relation to the applicant’s claims. [Counsel for ANT18] submitted that it was necessary for there to be an express consideration of the requirements of s 36(2B)(b) of the Act by the Authority in the circumstances of the present case and that the failure to do so meant that the Authority had not correctly applied the relevant law in determining whether the applicant met the criteria for complementary protection in respect of significant harm.

[Counsel for ANT18] submitted that it was necessary for the Authority to consider expressly the requirements of s 36(2B)(b) of the Act and that the Authority did not do so and that the failure to identify any express reference to the same supported the proposition that the Authority had not considered that provision. [Counsel for ANT18] also referred to the findings that were made addressing s 36(2B)(c) of the Act and took issue with the Authority relying, in respect of complementary protection, on the entirety of the earlier findings made in the refugee assessment. [Counsel for ANT18] submitted the Authority had conflated its findings and failed to properly consider the questions required under s 36(2B) of the Act and accordingly engaged in jurisdictional error.

The Authority’s reasons are not to be read with a keen eye for error. On a fair reading of the Authority’s reasons as a whole, there was no basis to find that the Authority failed to take into account the whole of s 36(2B) of the Act. This is not a case where there is a finding made by the Authority that made it necessary for the Authority to make an express finding under s 36(2B)(b) of the Act. The Court does not accept the submission that the Authority must make express reference in its reasons to all limbs of s 36(2B) of the Act unless in particular circumstances they are matters arising from the particular issues and findings made by the Authority. In the circumstances of the present case, there was no finding of a kind that gave rise to the need for the Authority to expressly refer to the requirements of s 36(2B)(b) of the Act. No jurisdictional error as alleged in ground 3 is made out.

18    The FCCA Judge dismissed the application with costs by orders made on 20 March 2019.

Appeal

19    On 22 March 2019, the appellant’s then solicitor (who has since ceased to act) filed a notice of appeal with this Court with the following two grounds of appeal (as written):

1.    His Honour erred in not finding that the reviewer erred in failing to consider S36(2B)(b) of the Act with reference to the applicant.

Particulars

a)    The reviewer failed to ask him/herself if the applicant could obtain from the authorities in Afghanistan such protection that there would not be a real risk that the applicant would suffer significant harm.

2.    Further grounds may be submitted once his Honour publishes his reasons for judgment

20    The appellant did not file any written submissions. The Minister did file written submissions.

21    At the hearing of the appeal, the appellant appeared in person. He made no oral submissions but accepted that he relied on the arguments put by his counsel before the Federal Circuit Court. The Minister was legally represented. The proceedings were conducted with the assistance of an interpreter.

Consideration

22    The first ground reflects the amended ground 3 before the FCCA. Although the FCCA Judge’s reasons were published on 5 April 2019, no further grounds were provided before or at the hearing of this appeal. Ground 2 therefore reveals no basis on which to find appellable error by the FCCA Judge.

23    In relation to the first ground, the Court notes that s 36(2B) of the Migration Act provides as follows:

(2B)    However, there is taken not to be a real risk that a non-citizen will suffer significant harm in a country if the Minister is satisfied that:

a)    it would be reasonable for the non-citizen to relocate to an area of the country where there would not be a real risk that the non-citizen will suffer significant harm; or

(b)    the non-citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non-citizen will suffer significant harm; or

(c)    the real risk is one faced by the population of the country generally and is not faced by the non-citizen personally.

24    The Court accepts the Minister’s submission that this ground should be rejected. In this case, the Authority found that there was no real risk that ANT18 will suffer significant harm (as defined in s 36(2A) of the Migration Act) on any of the claimed bases if he was returned to Kabul. Accordingly, Australia did not owe ANT18 protection obligations. It was therefore unnecessary for the Authority to consider the possible application of any of the paragraphs of s 36(2B). That is because, where any one or more of the paragraphs of s 36(2B) is satisfied, Australia will not owe a person protection obligations. In any event, it also plain from the text of s 36(2B) that each of the paragraphs are disjunctive, not cumulative, so the fact that the Authority considered whether s 36(2B)(c) applied, without apparently also considering whether s 36(2B)(b) applied could not result in jurisdictional error in the circumstances of this case. Consideration of s 36(2B)(b) could not have produced a better outcome for ANT18. This ground must fail.

25    Further, in so far as ANT18’s counsel put as argument to the FCCA Judge which suggested that it was not open to the Authority to rely on findings made by the Authority in its consideration of the appellant’s claims with respect to the refugee criterion under s 36(2)(a) in making a decision with respect to complementary protection claims under s 36(2)(aa), that argument must fail: see SZUYK v Minister for Immigration and Border Protection [2016] FCA 216 at [36], relying on Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33; 210 FCR 505 at [245]-[246] (Lander, Besanko, Gordon, Flick, Jagot JJ); see also SZSHK v Minister for Immigration and Border Protection [2013] FCAFC 125 at [32] (Robertson, Griffiths, Perry JJ).

26    As both grounds of the appeal fail to identify appellable error by the FCCA Judge, the appeal should be dismissed with costs.

Costs

27    The Minister seeks costs fixed in the amount of $3,500 and notes that the amount is less than the amount that can be claimed in a Short Form Bill for an appeal involving a migration decision pursuant to Federal Court Rules 2011 (Cth), Item 15 of Schedule 3 and that the amount sought is reasonable and “proportionate to the nature, including the complexity, of the case.”: see 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]. The Court was satisfied that it was appropriate to make the order sought.

Associate:

Dated:    9 March 2020