FEDERAL COURT OF AUSTRALIA

BSL17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 480

ORDERS

THE COURT ORDERS THAT:

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

2.    The second draft notice of appeal filed 23 November 2018 (dated 19 October 2018) be deemed to be a notice of appeal filed and served in accordance with the Court’s order of 20 February 2019.

3.    The appeal be dismissed.

4.    The appellant pay the first respondent’s costs of and incidental to the appeal, including those relating to the extension of time application, to be fixed by a registrar if not agreed.

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

REASONS FOR JUDGMENT

LOGAN J:

1    The appellant is a citizen of the Islamic Republic of Afghanistan. He is of Hazaragi ethnicity and is an adherent to the Shia branch of the Islamic faith.

2    The appellant came to Australia by sea on 27 August 2012. He did not then have a visa issued to him under the Migration Act 1958 (Cth) (the Act) permitting him to enter Australia. That means that he is what the Act (s 5AA) terms an “unauthorised maritime arrival”.

3    The first respondent has requested that the title of the relevant Ministerial Office be amended from Minister for Home Affairs to Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs. While I have amended the name of the first respondent accordingly, it is convenient to use the term, “Minister” as a generic reference to the Minister who is, for the time being, administering the Act. The Minister is the only active party respondent to this proceeding.

4    On 10 November 2015, with the assistance of a migration agent, the appellant lodged with the Minister’s department an application under the Act for that class of visa known as a Protection visa subclass XE-790 Safe Haven Enterprise Visa (SHEV). That was possible because the Minister had exercised in the appellant’s favour the power under s 46A(2) of the Act to permit the appellant to make such an application.

5    On 11 October 2016, a delegate of the Minister refused the appellant’s visa application. As the Act required, the application was then referred to the Immigration Assessment Authority (Authority) for what is known as “fast track review” in accordance with Pt 7AA. The appellant had the benefit of representation by a migration agent for the purposes of that review.

6    On 28 March 2017, the Authority affirmed the Minister’s delegate’s decision to refuse the appellant’s SHEV application.

7    The appellant then applied to the Federal Circuit Court of Australia (Federal Circuit Court) for the judicial review of the Authority’s decision. On 5 September 2018, for reasons delivered ex tempore that day, that court dismissed the appellant’s judicial review application: BSL17 v Minister for Immigration [2018] FCCA 2583.

8    On 2 October 2018, the appellant applied to this Court for an extension of time within which to appeal against the Federal Circuit Court’s order of dismissal. As it did below, and properly, the Authority, though necessarily named as a respondent, filed a submitting appearance.

9    By consent, an extension was granted to the appellant by the Court on 20 February 2019. The granting of that extension was on terms that the appellant file and serve a notice of appeal in the form of the second draft notice of appeal filed on 23 November 2018 (dated 19 October 2018) within 7 days. That order offered the appellant an opportunity to regularise the irregular filing of that document and thereby institute an appeal. As will be seen, that the extension was granted by consent is not without further relevance.

10    In the result, no notice of appeal in that form (or any other) was subsequently filed.

11    Though the appellant had the benefit of being represented by counsel and solicitor before the Federal Circuit Court, he has acted on his own behalf at all stages of the present proceeding. He is neither a lawyer nor literate in English. Unorthodox in form though it is, the second draft notice of appeal exhibits a sophistication which is inconsistent with an absence of legal training or fluency in English. Inferentially therefore, the appellant must have had the benefit of some legal advice in its preparation. The proposed grounds are a considerable improvement upon the unfocussed, generic grounds which are pleaded in the draft notice annexed to the application for an extension of time.

12    The Minister submitted that the proposed grounds were at variance with the issues raised by the grounds of review that were considered and dealt with by the Federal Circuit Court. In consequence, he submitted that leave to add these grounds should be refused, citing, aptly in terms of relevant principle, Coulton v Holcombe (1986) 162 CLR 1 at 7 and VUAX v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 238 FCR 588 at [48]. He also drew attention to the cautionary note which I had sounded in Gupta v Minister for Immigration and Border Protection (2017) 255 FCR 486 at [108] in relation to the risk, arising from the sheer volume of cases like the present, of overwhelming the finite resources of the Court to deal efficiently with all cases calling for an exercise of its appellate jurisdiction if litigants are encouraged to think that issues need not be raised for the first time in the original jurisdiction.

13    While I adhere to that view, the overarching consideration is always what is in the interests of justice in the circumstances of a given case. The interests of justice certainly extend to the efficient and fair allocation of finite judicial resources for the exercise of appellate jurisdiction but they are not at all limited to that consideration. Asylum seeker cases always carry with them as a consideration the possibility that, if the absence of administrative satisfaction as to the merits of a claim is wrong in fact and the claim is indeed well-founded, an unpleasant fate, if not worse, may await an unsuccessful asylum seeker appellant on return to his or her country. The prospective merits of proposed grounds of appeal are also always relevant. There is no point in granting leave to raise an obviously hopeless ground of appeal.

14    None of these subjects, however, require more detailed consideration in the circumstances of the present case. That is for two reasons.

15    First and foremost, it is because the Minister consented to the granting of an extension of time to institute an appeal in reliance on the very same proposed grounds to which he now takes exception. Moreover, even though a notice of appeal had not by then been filed in accordance with the order of 20 February 2019, the Minister also consented on 5 April 2019 to the making of an order that “[t]he hearing of this matter be listed on a date to be advised pending the outcome of the High Court appeal for which special leave was granted on 15 February 2019 in BVD17 v Minister for Immigration and Border Protection (S219/2018)”. A person who is what the Constitution (s 64) terms one of “the Queen’s Ministers of State for the Commonwealth” must lead by scrupulous example all the other officers of the Commonwealth in relation to the observance of model litigant obligations. A model litigant does not, with respect, approbate and reprobate. Those obligations are present irrespective of whether the other party is legally represented but their observance is of more than usual importance when, as here, the other party is not just a litigant in person but one not literate in English. When an extension of time is required, the time for the taking of objection to the raising by a proposed ground of appeal of an issue not raised in the original jurisdiction is at the time when the extension of time application is heard. In the present case, no such hearing was necessary, because of the Minister’s consent. The position would be different if an appellant later sought to raise yet further grounds which raised issues not raised below. But that is not this case.

16    The second reason, which need not be explored further in light of the first, is that, having regard to the reasons for judgment of the learned primary judge (notably, [11]), I am by no means persuaded in any event that the issues raised in the proposed grounds were not raised in the Federal Circuit Court. The proposed grounds look to me to detail the way in which more generally pleaded grounds of review were given particularity in the course of submissions in that Court.

17    In fairness to Mr McGlade of counsel, who appeared for the Minister, I should record that he devoted his time in oral submissions to addressing the substantive merits of the grounds of appeal.

18    Given the absence of the filing of a notice of appeal, there is a need, in the interests of justice, to regularise the institution of an appeal, so as to give effect to the consensual position of the parties and the intent of the Court’s order of 20 February 2019. Accordingly, I shall order that the second draft notice of appeal filed on 23 November 2018 (dated 19 October 2018) be deemed to be a notice of appeal filed and served in accordance with the Court’s order of 20 February 2019.

19    It is necessary now to set out the grounds of appeal:

The Federal Circuit Court erred in finding, at [11], that the IAA’s decision was not affected by jurisdictional error on the ground that the IAA had failed to have regard to an integer of the applicant’s claim when considering whether it was reasonable to expect him to relocate to Mazar-e-Sharif, in that;

the applicant claimed to fear persecution by the Taliban, particularly by reason of its connections with a powerful local Hazara, as a result of an incident in 2012 in which the applicant had handed over to the military two members of the Taliban who had been engaged in criminal activities;

earlier in its reasons, at [17], [20] and [23], the IAA correctly identified this fear as a claim made by the applicant;

the claim was based on established facts in that:

the IAA accepted that the 2012 incident occurred as the applicant claimed;

the IAA accepted that, if he were to return to Jaghori, the applicant’s return would come to the attention of the powerful local Hazara and he would face a real chance of being targeted by the Taliban through the powerful local Hazara and his associates;

the IAA expressly found at [17] and [23] that the applicant had a well-founded fear of harm from the local Hazara and the Taliban in Jaghori;

the IAA appeared to accept (or at least assume) at [20] that the applicant held a genuine subjective fear that the powerful local Hazara would learn of his return to Afghanistan through informer networks;

the IAA found at [23] that it considered it “remote” that the Taliban or the powerful local Hazara would learn of the applicant’s presence and pursue him in Mazar-e-Sharif and, on that basis, was not satisfied that the applicant faced a “real chance” of “serious harm” in Mazar-e-Sharif;

it was implicit in this finding, or, in the alternative, not excluded by it, that the applicant did face some chance of serious harm in Mazar-e-Sharif, albeit that the chance was sufficiently remote that it did not amount to a “real chance” (because of the unlikelihood, as the IAA found, that the applicant’s return would in fact come to the attention of the powerful local Hazara);

in considering the first issue that arises under s 36(2B)(a) of the Migration Act (whether there was “an area of the country where there would not be a real risk that [the applicant] will suffer significant harm”), the IAA at [44] found that there was not a “real risk” that the applicant would face serious or significant harm in Mazar-e-Sharif because of the 2012 incident;

however, in considering the second issue that arises under s 36(2B)(a) (whether “it would be reasonable for [the applicant] to relocate to” Mazar-e-Sharif), the IAA considered various factors personal to the applicant and the situation with respect to “general violence in Mazar-e-Sharif”, but did not consider the “remote” risk of serious harm from the Taliban or the applicant’s subjective fear of such harm.

This ground appears to have been argued in substance below and was expressly addressed by the Federal Circuit Court at [11] of its reasons for judgment. If, however, leave to advance this ground is required then the applicant seeks that leave.

[sic] [IAA refers to the Authority] [emphasis in original]

20    The grounds of appeal conflate appeal grounds with related submissions. As it happens, that unorthodox practice served the interests of justice in this case. That was because, on the hearing of the appeal, the appellant, who appeared on his own behalf with the benefit of an interpreter, spent time not in developing these grounds but rather in making a submission from the Bar table about the present situation in Afghanistan. The sincerity of his submission was undoubted but so, too, was its irrelevance in terms of establishing that the learned primary judge ought to have found jurisdictional error in relation to the Authority’s decision. I understood also from the appellant that everything he wanted to submit about such error was to be found in the notice of appeal.

21    Consideration of these grounds requires the detailing of the basis upon which the appellant claimed a SHEV and of the Authority’s reasons for its decision.

22    The appellant detailed the basis of his claim in a statutory declaration annexed to his SHEV application. The appellant’s expressed fear of persecution was a sequel to an incident which he stated had occurred in Afghanistan in June 2012 in the course of his following his then occupation as a taxi driver. The incident, so the appellant claimed, occurred while he was conveying passengers in his taxi. It entailed their being accosted at a makeshift roadblock by two armed men whose faces were partially obscured by headwear. He and his passengers were then bound and abducted. During their abduction, the appellant stated that he and his passengers had managed to free themselves and then overpower the two armed men when their attention was diverted elsewhere. They then drove the two men to a military compound and handed them over to the Afghan National Army. When the headwear of the men was removed, one of the men was identified as Hazara. The following day the applicant received two threatening calls from the Taliban accusing him of handing over the men to infidels. A further phone call was made by someone associated with a powerful Hazara man, “H” who had Taliban links. The appellant said he was accused of handing over H’s nephew to the international forces and was told that they knew where he lived and would kill him.

23    The appellant claimed that, a couple of days later, he had returned to his home after attending a wedding out of his home district to find that a group of men had broken the windows of his house after his family refused to let them in. The appellant further claimed that he had made a complaint to the governor who was unable to help due to the influence of “H”. Fearful for his life, the appellant stated that he had sold his taxi and other business interests and fled on a journey that took him to Australia.

24    The Authority (at [9]) characterised his claim as that of a person who:

… fears harm from the Taliban as a Shia Hazara who is perceived to be a government supporter because he handed over Taliban criminals to the Afghan army; and as a failed asylum seeker from Australia.

It found the appellant’s claim was also that of a person who:

… also fears harm as a taxi driver who would face constant danger on the roads and has no other means of supporting his family. He fears harm from H because he handed over his nephew to the Afghan authorities.

25    The Authority found that the appellant had been generally consistent over time in his accounts of the incident. Having consulted country information, the Authority also found (at [15]) that the appellant was the victim of a random stoppage by the Taliban at an ad hoc checkpoint. After further analysis of statements made by the appellant and of country information, the Authority then made this finding (at [17]):

Despite the passage of over four years, I accept that if the applicant returned to his local area in Jaghori where he is known, his return would come to the adverse attention of the local Hazara or his associates and through them the local Taliban. I am satisfied that there is a real chance that he will be targeted by the Taliban through the local Hazara and his associates, in Jaghori due to the incident in 2012.

26    Mindful of s 5J(1)(c) of the Act, the Authority then directed attention to whether the real chance of persecution it had found related to all parts of Afghanistan. After a detailed analysis of the appellant’s claims and country information, the Authority concluded that it was not satisfied that the appellant had a well-founded fear of persecution in Mazar-e-Sharif. A further conclusion drawn by the Authority from this analysis was that it was “not satisfied on the evidence that returnees/failed asylum seekers like the applicant who have lived in a western country for a significant period are targeted in Mazar-e-Sharif by insurgents or that the applicant would be targeted on return to Mazar-e-Sharif as a Shia Hazara returnee/failed asylum seeker with an imputed pro-Western political opinion”. In particular, at [23], the Authority stated:

I consider it remote that the Taliban or the powerful local Hazara, despite the applicant’s claim of the Taliban's intelligence capabilities, would learn of the applicant’s presence and pursue him in Mazar-e-Sharif, which is a large urban area with a large population of mixed ethnicity where the applicant's background is not known and which is remote from Jaghori.

[emphasis added]

I interpolate that it is this particular reference to remote in the Authority’s reasons upon which the appellant has seized in his grounds of appeal.

27    As a result, the Authority found that the appellant did not meet the requirements of the definition of refugee in s 5H(l) of the Act. The Authority was therefore not satisfied, for the purposes of s 36(2)(a) of the Act, that the appellant was a person to whom Australia had protection obligations.

28    The Authority then turned to an assessment of whether it was nonetheless satisfied that the appellant was a person to whom Australia had a complementary protection obligation in terms of s 36(2)(aa), which refers to a person who is:

… a non‑citizen in Australia (other than a non‑citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non‑citizen being removed from Australia to a receiving country, there is a real risk that the non‑citizen will suffer significant harm.

29    The Authority next addressed whether the stipulation in s 36(2B) of the Act, as to what was not to be taken as a real risk of significant harm, was applicable. That provides:

(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.

30    The Authority conducted a further detailed analysis of country information for this purpose and also rehearsed findings which it had made in relation to the s 36(2)(a) protection visa criterion. Having so done, the Authority concluded that it was not satisfied that the appellant faced a real risk of significant harm in Mazar-e-Sharif, which he could safely access by air. The Authority found that it was reasonable for the appellant to relocate to Mazar-e-Sharif.

31    The learned primary judge concluded (at [11]) that the Authority had not found as an established fact that the appellant “would be targeted by, or persecuted by, members of Hazara or the Taliban should he relocate to Mazar-e-Sharif and involve himself in a large community by reason of his having participated in an activity involving Taliban sympathisers back in 2012”. This, with respect, is true. In his grounds of appeal and conflated submission, the appellant has focussed on the Authority’s finding in its s 36(2)(a) assessment, at [23], that considered such a risk of targeting “remote”, to contend that his Honour ought to have found that the Authority had committed jurisdictional error, because, in its s 36(2)(aa) assessment, the Authority had not adverted either to this remote risk or to his subjective fear of being so targeted if he relocated to Mazar-e-Sharif.

32    As a matter of ordinary English, the effect of s 36(2B)(a) of the Act is to pose for answering two sequenced questions:

(a)    is there an area of the country where there would not be a real risk that the non citizen will suffer significant harm; and, if so

(b)    would it be reasonable for the non-citizen to relocate to that area?

33    The Minister submitted, correctly, that the grounds of appeal focussed on the second of these questions.

34    As to that second question, the following observation of Gummow, Hayne and Crennan JJ in SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18, at [24] (SZATV) remains pertinent:

What is “reasonable”, in the sense of “practicable”, must depend upon the particular circumstances of the applicant for refugee status and the impact upon that person of relocation of the place of residence within the country of nationality.

35    This observation was made in the course of a critique of the submissions made by the parties in that case on the subject of internal relocation. Regard to SZATV, at [23] in the joint judgment discloses that their Honours were prepared to allow that the presence of a visa applicant’s subjective fear of persecution might be taken into account in an assessment of whether it was reasonable, in the sense they describe, for the visa applicant to relocate. It is just that the presence of a subjective fear is not determinative of a well-founded fear of persecution and neither, equally evidently from [23], is “the presence of a ‘safe area’ within the country of nationality”.

36    Later, in Minister for Immigration and Border Protection v SZSCA (2014) 254 CLR 317, at [30] (SZSCA), French CJ, Hayne, Kiefel and Keane JJ cited with approval these observations by the Court of Appeal of England and Wales in E v Secretary of State for the Home Department [2004] QB 531, at 543 at [23], which had also commended themselves to the House of Lords in Januzi v Secretary of State for the Home Department [2006] 2 AC 426, at 446 at [15] and at 448 at [20]:

Relocation in a safe haven will not provide an alternative to seeking refuge outside the country of nationality if, albeit that there is no risk of persecution in the safe haven, other factors exist which make it unreasonable to expect the person fearing persecution to take refuge there … Where the safe haven is not a viable or realistic alternative to the place where persecution is feared, one can properly say that a refugee who has fled to another country is “outside the country of his nationality by reason of a well-founded fear of persecution”.

37    Their Honours then observed in SZSCA, at [30], also taking up with evident approval a further statement in E v Secretary of State for the Home Department [2004] QB 531, at 543 at [24], that:

The nature of the test was said to involve “a comparison between the conditions prevailing in the place of habitual residence and those which prevail in the safe haven, having regard to the impact that they will have on a person with the characteristics of the asylum seeker”.

[footnote references omitted]

38    This comparison is not at large. It is informed by the objections raised by a visa applicant to relocation: MZACX v Minister for Immigration and Border Protection (2016) 161 ALD 73, at [34]. In those objections one might well encounter the presence of a subjective fear such as that professed by the appellant in terms of his being targeted.

39    The very nature of judicial review, as opposed to merits review, is that attention will in many cases focus on the reasons given by an administrator in order to determine whether the decision concerned is attended with jurisdictional error. In turn that means that the cautionary note sounded in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 in relation to over-zealous scrutiny of such reasons will frequently be encountered. It is singularly important that the force of that caution is not diminished by the frequency of its encounter. The present case is yet another which requires fealty to that cautionary note.

40    Though the Authority has, quite properly, separately addressed whether it should be satisfied as to the visa criteria respectively found in s 36(2)(a) and s 36(2)(aa) of the Act, its reasons are not rigidly compartmentalised. That is made clear when one reads them as a whole. More particularly and relevantly, the reasons which address the s 36(2)(aa) complementary protection criterion expressly draw upon the situational analysis undertaken by the Authority in relation to the s 36(2)(a) criterion. This linkage is exemplified (and certainly not exhausted) in this pertinent excerpt from [43] and in [44] of the Authority’s reasons:

43.    … I have also found that there is not a real chance that he would face other forms of harm in Mazar-e-Sharif as a Shia Hazara and as the “real risk” test imposes the same standard as the “real chance” test, I am also not satisfied that there is a real risk of the applicant suffering such harm on the return to Mazar-e-Sharif as a Shia Hazara.

44.    I have otherwise found that there is not a real chance that the applicant will face serious harm in Mazar-e-Sharif as a returnee/failed asylum seeker from the West or because he handed in Taliban members to the military in Ghazni in 2012. 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 Mazar-e-Sharif for those reasons.

[emphasis added]

41    Further, the Authority’s reasons in relation to complementary protection are replete with references to taking into account “the applicant’s circumstances” (see: [50] and [54]). One does not read these references as divorced from the detailed recitation of his circumstances both in that part of the reasons or in the earlier part addressing the s 36(2)(a) criterion. To do that would, truly, be over-zealous in terms of looking for error. Reading the reasons fairly and as a whole, the Authority was, necessarily, also aware of the remote risk of targeting and of the appellant’s subjective fear when assessing complementary protection. So read, the reasons are consistent only with a rejection of the proposition that the remote risk amounted to a real risk of the appellant suffering significant harm: see, in particular the emphasised part of [44] of the Authority’s reasons, quoted above.

42    The reasons of the Authority, read fairly and as a whole, reveal a thorough, even meticulous, assessment by the Authority of the merits of the appellant’s SHEV claim and of whether it would be reasonable in the SZATV sense of “practicable” or the SZSCA approved sense of “viable or realistic” for him internally to relocate to, relevantly, Mazar-e-Sharif. Yet further, and understandably, those reasons so read, have obviously been informed by and are responsive to a comprehensive submission dated 13 December 2016, made to the Authority by the appellant’s migration agent. The Authority has engaged with all of the fears, subjective and otherwise, which were highlighted in that submission in relation to why he ought not forcibly be returned to Afghanistan.

43    The grounds of appeal advanced by the appellant must, for these reasons, be rejected. The learned primary judge was correct to conclude that it had not been established that the Authority fell into jurisdictional error. That remains so even if one reads the grounds of appeal as raising a different basis of challenge to the case as presented to his Honour. It follows that the appeal must be dismissed.

Associate:    

Dated:    15 April 2020