Federal Court of Australia

BCC18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 493

ORDERS

THE COURT ORDERS THAT:

1.    The Immigration Assessment Authority be joined as a respondent.

2.    The necessary extension of time be granted within which to appeal the decision of the Federal Circuit Court.

3.    The appeal be dismissed.

4.    The appellant pay the first respondent’s costs of and incidental to the appeal.

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

REASONS FOR JUDGMENT

BEACH J:

1    The appellant, who sought an extension of time in which to appeal from a decision of the Federal Circuit Court made on 19 February 2020, which extension I have granted, challenges the primary judge’s dismissal of an application for judicial review by which the appellant had challenged a decision of the Immigration Assessment Authority made on 6 February 2018, which had affirmed a decision made by a delegate of the relevant Minister on 28 June 2017 to refuse to grant to the appellant a safe haven enterprise visa.

2    I would dismiss the appeal for the reasons that follow.

3    Now the appellant did not name the Authority as a party, but at the hearing I indicated that I would make an order joining it as a second respondent; the Authority, of course, does not usually take an active role.

4    On 3 February 2013, the appellant, a citizen of Afghanistan, arrived in Australia as an unauthorised maritime arrival. On 3 March 2016, he was invited to apply for the visa by letter informing him that the Minister had lifted the bar pursuant to s 46A of the Migration Act 1958 (Cth) which otherwise prevented him from applying. He made an application for the visa on 1 September 2016.

5    The appellant’s claims for protection can be summarised as follows. He is from the Ghazni province where he worked as a tailor and made army and police uniforms. He spent two years living in Kabul but returned home to the Ghazni province when his father became ill. He says that in 2011 and 2012 he was stopped by the Taliban on three occasions whilst travelling between his home in [X] and Ghazni city. He was questioned about whether he was working for the government or the army. He says that on the third of those occasions he was interrogated “harshly” and physically and verbally abused. He claims also to have been detained and taken to a house and held until dusk. He says that he was released on condition that he not show up on the roads. He was told that he would be killed if he was caught with anything indicating that he worked for the army or government. He says that in mid-2012, a letter was left by the Taliban at his house with his wife saying “we know that you sti[t]ch army uniform. You better surrender yourself or we will blow your house and kill your entire house”. He says that after receiving that letter, he escaped to Pakistan, and from there came to Australia with the help of a smuggler.

6    He claims that he is unable to return to Afghanistan and cannot go to another area of the country as the security situation is poor throughout Afghanistan. He says that the Taliban would find him and target him. He also claims that the insecure roads would affect his ability to relocate in Afghanistan, and in addition he says that he would have no family or tribal support in any other part of Afghanistan.

7    He fears that he would be harmed due to his race and his religion as a Shia Hazara, and on account of his real or imputed political opinion because of working as a tailor for army uniforms and also as a failed asylum seeker who has lived in the West.

8    On 28 June 2017, the Minister’s delegate refused the application for the visa.

9    The delegate’s decision was then reviewed by the Authority which affirmed the delegate’s decision.

10    The Authority accepted that he had worked as a tailor. Further, whilst it accepted that he was stopped and questioned by the Taliban, the Authority did not accept that this was because he was stitching uniforms. The Authority also did not accept that he was held, questioned and beaten on the third occasion after being stopped by the Taliban. Nor did the Authority accept that he was ever threatened by the Taliban prior to his departure from Afghanistan, and nor did it accept that he had received the letter that he claimed to be the reason he left Afghanistan.

11    The Authority did not consider that the appellant had the type of personal risk profile, including arising from his work as a tailor, that would support the claim that he would be targeted by the Taliban if he were to return to Afghanistan. The Authority also rejected his concerns relating to any real or imputed political opinion.

12    Further, in relation to his claim to fear harm as a Shia Hazara, the Authority noted that the population of the Ghazni province was approximately 40% Hazara. The Authority further noted that most returnees are returned to Kabul. Further, although it accepted that there was some road insecurity, it considered that the appellant would be able to fly from Kabul to his home area. Now at the time his wife and family resided there. But apparently they now live elsewhere.

13    The Authority also rejected the appellant’s claim that he would be harmed as a failed returning asylum seeker from the West.

14    Further, there were other assertions made by the appellant that the Authority rejected and which I do not need to detail.

15    Accordingly and in summary, the Authority found that the appellant did not meet the criteria for recognition as a refugee, nor did he meet the criteria for the grant of a protection visa on the basis of complementary protection. The Authority affirmed the delegate’s decision.

16    The appellant then sought judicial review in the Court below. The appellant was legally represented before the primary judge. The four grounds that were pressed were extensively particularised, but in summary they were:

(a)    first, that the Authority had constructively failed to exercise its jurisdiction by failing to deal with certain integers of his claim;

(b)    second, that the Authority had constructively failed to exercise its jurisdiction by failing to consider that he faced a real chance of harm in the future, but instead had limited its consideration to whether there had been any past harm;

(c)    third, that the Authority’s finding that he did not face harm by reason of his prior occupation as a tailor was legally unreasonable; and

(d)    fourth, that the Authority had failed to take into account a relevant consideration, being the fact that country information corroborated a critical aspect of his claim.

17    The hearing before the primary judge took place on 3 September 2018. On 19 February 2020, her Honour rejected each of these grounds and dismissed the application. I do not need to linger on her Honour’s reasons.

The present appeal

18    In the appellant’s notice of appeal he stated that the primary judge did not consider the high level of danger he would be facing if sent back to Afghanistan and that the primary judge erred in considering Kabul and [Y] a safe place for him and his family to live. Of course, this demonstrates a misconception of the nature of the primary judge’s task.

19    Further, in the notice of appeal the appellant identified that his background as a Shia Hazara is a major risk factor for him and for his family to stay in Afghanistan.

20    Further, in a letter sent to a Registrar of this Court, the appellant referred to what he identified as dangers that make living in Afghanistan “impossible for many Afghans”. Moreover, he re-iterated that the Taliban is still looking for him and his family and that he would be at significant risk if returned. I do not need to set out the contents of the letter, which I have considered.

21    Clearly the appellant is seeking impermissible merits review. And as I explained to the appellant, I can only address any error made by the primary judge or any jurisdictional error made by the Authority. Moreover, some parts of the appellant’s letter refer to factual developments concerning his family that occurred well after the Authority made its decision and for that reason also must be put to one side.

22    In my view, no error is apparent in the decision of the primary judge.

23    Further, and notwithstanding the contents of the notice of appeal, it is apparent from a reading of the Authority’s reasons that it did not make any finding in relation to the appellant relocating to Kabul or [Y] on return to Afghanistan. On the contrary, the Authority decided that the appellant would return to his home province although he may have to first travel from Kabul.

24    It would seem that the appellant may have been referring to the findings of the delegate, who considered at some length the relative safety of Kabul and [Y].

25    Now it may be accepted that the delegate and the Authority approached this matter in different ways. And there were also divergences on other matters, such as the alleged letter from the Taliban.

26    Now because the appellant was not legally represented before me, the Minister’s counsel, Ms Reg Graycar, quite properly addressed this divergence of views between the delegate and the Authority.

27    Reference was made to ABT17 v Minister for Immigration and Border Protection (2020) 383 ALR 407, which discussed the circumstances in which it may be considered legally unreasonable for the Authority to make findings which differed from those of the delegate, without giving the applicant an opportunity to provide further information pursuant to s 473DC of the Act. An appeal was allowed in circumstances where the Authority had made findings about the credibility of an applicant by reference to the manner in which it considered he had given his evidence, after listening to an audio recording of his interview with the delegate. The Authority had not accepted that the applicant was credible, notwithstanding that his account had generally been accepted as plausible by the delegate. The Authority described the applicant as having sounded vague and hesitant, as being unable to expand in any detail on a number of his written claims, and considered that his evidence was generally lacking in detail. It was in that context that the Court found that it was legally unreasonable for the Authority not to have invited the applicant to an interview.

28    I do not need to discuss the relevant principles. The case before me is far removed from the scenario discussed in ABT17 (see the plurality’s discussion at [15] to [18] and [25]).

29    For example, this is not a case where the different findings in relation to the Taliban letter made by the delegate and the Authority would require, as a component of conducting the review reasonably, that the Authority consider inviting the appellant to an interview, if only because even though the delegate appeared to accept that the appellant had received the letter, that did not lead to a finding that there was a real risk of harm.

30    Accordingly, in my view there is nothing about the circumstances of the present case that would indicate that the Authority acted legally unreasonably by making findings that were different from those of the delegate without inviting the appellant to attend an interview or provide further information. Moreover, it must also be recalled that the appellant was legally represented at the hearing below and no issue was then raised about any such divergence between the Authority and the delegate on factual questions.

31    The appeal must be dismissed with costs.

Associate:

Dated:    11 May 2021