DYP17 v Minister for Home Affairs

Decision of the Authority 5 The appellant was represented in the Authority proceeding and provided number of submissions to the Authority. In summary, the appellant claimed as follows: The appellant worked as a tobacco farmer in Parwan province, selling his tobacco to local dealers as well as in Kabul; The appellant had business dealings with a Pashtun (Mr E) that ended in 2011. After the business relationship finished Mr E organised an interception and confiscation of the appellant's tobacco as it was being transported to Kabul; Mr E was trying to kill the applicant due to the breakdown of the business relationship, as well as Mr E's support of the Taliban and his Sunni religion; The appellant's assisted an English language school in his home region by transporting books from Kabul to the school; The Taliban intercepted a consignment of the English books and forced the driver to report who organised their transport. The appellant's details were provided to the Taliban; Hazaras face security risks on the roads to Kabul; Due to the threat from the Taliban and Mr E the appellant left Afghanistan in fear of his life; and The appellant fears he will be denied access to education, healthcare, or employment in Afghanistan. 6 The Authority referred to s 5H(1) of the Migration Act which provides that a person is a refugee if: in a case where the where the person has a nationality, he or she is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or in a case where the person does not have a nationality, he or she is outside the country of his or her former habitual residence and, owing to a well-founded fear of persecution is unable or unwilling to return to it. 7 The Authority noted s 5J of the Migration 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 relates 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. 8 The Authority at [19] of its reasons noted that, in the appellant's entry interview, he did not disclose information regarding the transport of English language books, nor any information concerning Mr E. The Authority noted that the appellant's reason for his failure to disclose this information at the time was that he had been told to be brief. However the Authority did not accept this explanation. The Authority stated at [21]: I consider that the applicant's statements at his entry interview seriously undermine his claim that he departed Afghanistan after being told that the Taliban planned to arrest him, that he was involved in transporting English language text books, that he was involved in a business dispute with a powerful Pashtun warlord who was a supporter of the Taliban, and that one of his tobacco shipments was stolen in this regard. 9 Further, the Authority noted that the appellant's evidence at the interview for a temporary protection visa was not compelling. The Authority concluded that the appellant had engaged in obfuscation because the answers to these questions would have raised further doubts about the credibility of the appellant's claims. 10 In summary, while the Authority accepted that the appellant was a Shia Hazara from the relevant district in Afghanistan, and part of a family which grew and sold tobacco, the Authority concluded that he only undertook English language education during his childhood. Further, the Authority did not accept that the appellant: was involved in English classes at the time he departed Afghanistan; was assisting the local English language teacher; had assisted in the transportation of English language textbooks or that the books were intercepted by the Taliban; or had a dispute with a powerful Pashtu warlord named Mr E, or that his family's tobacco shipments had been stolen because they belonged to the appellant or his family. 11 It followed that the Authority was not satisfied that the appellant would face a real chance of harm on any such basis, or that he would face a real chance of harm for reason of his being literate in English and/or having studied the English language as a child. 12 The Authority did accept that the appellant held genuine concerns regarding travel from Kabul to his home area, particularly as there had been accusations and/or instances of Hazaras being abducted while travelling through the insecure Pashtun dominated rural areas. The Authority noted, however, that no such abductions or attacks had been reported from the appellant's home province during recent years. 13 The Authority noted that individuals perceived as "westernized [sic]" could be in need of protection depending on the individual circumstances of the case, however found that low-profile Hazaras who had spent time in western countries faced a low risk of violence as a result of international links. The Authority referred to country information to the effect that Afghans who had returned from western countries could be at risk of harm if evidence of their having lived in a western country was discovered when encountering the Taliban or another insurgent group, however also noted that Hazaras unwilling to take the risk of travelling by road and able to afford the cost had the option to fly on a weekly service from Kabul to the city of Bamyan for a fare of approximately USD100. The Authority found: 29. … Given that the applicant's family's tobacco farm continues to do business I am satisfied that the applicant would be able to afford the fare for such a flight from Kabul to Bamyan even if he received no financial assistance from Australia following his arrival at Kabul's international airport. 30. The applicant is therefore not restricted to travelling from Kabul to his home areas by road and he may, instead, fly to the Hazarajat by air, landing in Bamyan, and can then travel eastward to his home area of Surkhi Parsa District either by way of Bamyan's Shibar and Shekhali districts, or by way of Wardak's Behsurd Districts. All of these districts are either predominantly or significantly populated by Hazaras. According to DFAT Shibar sees higher levels of violence by armed AGE's than other parts Bamyan [sic], but it is nonetheless also case [sic] that Shibar sees fewe security incidents and very little insurgent activity and when insurgent actions have occurred in Shibar they have tend [sic] to be targeted at government officials. DFAT assesses that overall Hazaras are able to travel through Bamyan's areas without facing undue security risks. Although the Behsud districts have sometimes seen seasonal clashes between Kuchi nomads and local Hazaras, there is no evidence of these lashes [sic] having affected travellers transiting the district. There is no evidence of the roads through these areas being affected by checkpoints set-up [sic] by Taliban or other AGEs searching for persons associated with the Afghan government or the international community… given the favourable security situation in the applicant's home area and this his home area is predominantly populated by Hazaras and under the influence of the Hazara Hezb-e Wahdat political movement, and given the favourable view of Hazaras towards migration to western countries and to western countries in general, and given that the applicant would be able fly [sic] from Kabul to Bamyan and make the journey to his home area via the roads of Bamyan and/or the Behsud districts, I am not satisfied that the applicant would face a real chance of suffering harm of any kind in travelling to and residing in his home area, as a consequence of his being a Shia Hazara who has returned from the western country of Australia where he has lived and sought asylum, seems remote [sic]. 14 The Authority accepted that there was greater risk of insurgent violence in Kabul, however, it was noted that the appellant would be required to spend "no more than a week in Kabul before flying onward to Bamyan", and that: 31. … while in Kabul he would be one of more than a million Shia Hazaras in a city of many millions, and one among many Afghans arriving in Kabul from a western country. 15 In relation to the appellant's claims of potential difficulties accessing medical treatment in Kabul if required, the Authority observed as follows: 34. At the TPV interview the applicant claimed that he had formerly travelled to Kabul every now and then to collect money from tobacco sales and every now and then if he got sick because they did not have a doctor in the area. I have my doubts about the extent to which the applicant may have been making trips of this kind but I am willing to accept that it had been the applicant's practice to travel to occasionally travel [sic] to Kabul for business and every now and then if he needed to see a doctor. However, in February 2016 DFAT reported that basic medical care was available in Bamyan, and the applicant could therefore access such care by travelling westward into the security of the Hazarajat. He could also fly from Bamyan to Kabul in the event of requiring specialist medical care. … 16 The Authority was not satisfied that the appellant would face a real chance of harm if he returned to his home area of Surkh-e Parsa, in Afghanistan. The Authority concluded that the appellant did not meet the definition of a refugee in s 5H(1), and does not meet s 36(2)(a) of the Migration Act. 17 The Authority 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 Afghanistan. Accordingly, the appellant did not meet the requirements of s 36(2)(aa) of the Migration Act.

Decsion of the Federal Circuit Court 18 The appellant sought review of the decision of the Authority in the Federal Circuit Court of Australia. He was represented by Counsel in that Court. 19 In the Federal Circuit Court the appellant pressed the following grounds of review: 1. The IAA misconstrued and, therefore, misapplied the terms, "information" and "new information" in s. 473DC(1) of the Migration Act. Particulars (a) the error in categorising claims that the applicant feared persecution at the hands of Sunni militant groups as "information" and "new information". … 4. The IAA decision was legally unreasonable in that it failed to consider whether it should invite the applicant to give new information whether pursuant to s 473DC(3) or otherwise as to whether upon return to his home area of Shekiay Pasa in Harlan District of Afghanistan there would be a need for him to travel on roads outside that area. Particulars (a) The IAA found the applicant would not have a well-founded fear of persecution were he to return to his home area and that he could travel safely to that area. (b) And accepted that he would not take road trips outside that area for fear of serious harm if he did undertake such travel. (c) It found that: (i) driving on roads to Kabul was not a characteristic fundamental to the applicant's identity conscience or political opinion, and that (ii) It was not persuaded that there would be a need for the applicant to make such trips. (d) As it was necessary for the IAA to: (i) Consider the impact on the applicant of his return to his home area, including for the purposes of section 36, subsection 2(aa) of the Migration Act whether it would be reasonable to so return. And that question involved, Whether it would be necessary for him to travel by road outside his home area for the purpose of his business or otherwise and that in turn involved, and Facts and circumstances within the personal knowledge. 20 In the first ground of review the appellant relied on s 473DC(1) of the Migration Act which relevantly provides: (1) Subject to this Part, the Immigration Assessment Authority may, in relation to a fast track decision, get any documents or information (new information) that: (a) were not before the Minister when the Minister made the decision under section 65; and (b) the Authority considers may be relevant. 21 The primary Judge noted that, in its reasons at [3], the Authority stated that it had looked at the material which were responses to the findings of the delegated which amounted to argument with the delegate's decision. In particular, his Honour observed: 20. The IAA then said this: It was also submitted that the applicant fears harm not only from the Taliban but also from the ISIS and other Sunni extremists including Hezbi Islami and Mr E also other armed paramilitary groups, and that the reason for this included is being a returnee from the west. Although the applicant had previously claimed to fear harm from Mr E and his militias, and had indicated that these militias were the Taliban and that he feared the Taliban more generally, he had never stated that he feared ISIS (Islamic State), or Hezbi Islami, or other armed paramilitary groups, nor had he indicated that the reason for this included his being a returnee from the west, and this is new information/ 21. It is the categorisation of that as new information that is the basis for ground one. The argument stems from what the High Court has said in the matter of Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16 (18 April 2018). 22. At paragraph 24 the High Court said: [24] The term "new information" must be read consistently when used in ss 473DC, 473DD and 473DE as limited to "information" (which may or may not be recorded in a document), in the ordinary sense of a communication of knowledge about some particular fact, subject, or event that meets the two conditions set out in s 473DC(1)(a) and (b) ... 23. The Applicant contends that this is somewhat of a "game changer" because it has confined information as being a communication of knowledge about some particular fact, subject to event. 24. The submission made by the Applicant is that this was not information. This was a claim. This was speculation. This was a feeling. This was nothing more than subjectively what the Applicant was feeling. The submission says that what the High Court has now said means that the old way of looking at these matters, that has been determined beforehand in authorities such as CVK16 v Minister for Immigration and Border Protection [2017] FCA 1434 are now no longer the law. 22 His Honour concluded, however: 26. … I do not regard the claim as not being information. It clearly is information. It is information that the Applicant fears harm. The reason that he fears harm is because of ISIS; because of Hezbi Islami; because of other armed paramilitary groups; because of being a returnee from the west. 27. That is information because it is a fact. It is a fact that the Applicant fears returning. It is a fact because it gives out reasons as to why it is that he fears. It is consistent with what the High Court has said because it is communication of knowledge about a particular fact, a particular subject, a particular event. That is, that he fears harm because of those matters that I have listed. 28. Because he had not imparted that knowledge before, it fits into the definition of new information and, thus, is subject to the prohibition on new information in s.473DC. It was open, therefore, to the IAA to find as they did that they would not accept the new information. 29. However, it is clear as well, even though they have not accepted that this is new information, the IAA has looked at a number of those matters anyway because the IAA ended up looking at the genuine fear that the Applicant has said that he has in travelling roads. At paragraph 29, the IAA has made findings consistent with the country information, that it already had, as to what the state of the roads are and what paramilitary groups are the ones who are, in effect, attempting to control those roads and cause the instability that the IAA has found existed. 30. As I say, that is simply an aside because the ground really is that the IAA has made an error in finding that this is new information. I do not agree that such an error has been made and, therefore, if I don't find that there is an error, it can hardly be characterised as a jurisdictional error. For those reasons ground one fails. 23 The primary Judge noted that ground 4 of the appellant's claim relied on such authorities as Minister for Immigration and Border Protection v CRY16 [2017] FCAFC 210; (2017) 253 FCR 475 where the Court said that the Authority knew or must be taken to have known that the question of relocation had not been considered by the delegate. In that case, the Full Court found that it was legally unreasonable in the circumstances not to consider getting documents or information from the respondent, because the statutory power in s 473DC must be exercised reasonably, and in the circumstances the Authority knew that it did not have, but the respondent was likely to have, information on the appellant's particular circumstances and the impact upon him of relocation to Beirut. The Full Court further found that the failure of the Authority to consider the exercise of its discretionary power meant it disabled itself from considering what was reasonable in terms of relocation, and accordingly the review by the Authority under s 473CC miscarried for jurisdictional error. 24 The primary Judge continued: 35. In this matter the Applicant submits that the delegate had considered that it was dangerous for the Applicant to return to his home area and instead found that it was reasonable for the Applicant to relocate to Kabul. The IAA instead said that it was not satisfied that the Applicant could not be returned to his home district because he would not face a well-founded fear of persecution, nor would he face serious harm if returned. The IAA looked at the fact that the Applicant could stay in his home district and would not have to travel along those roads and, if he did need to go to Kabul, he could fly. 36. The criticism is that whether or not the Applicant did need to use the roads or could afford to be able to fly to Kabul if needed were matters that were not within the knowledge of the IAA and would be within the knowledge of the Applicant. Therefore, it was unreasonable not to use the power under s.473DC(3), to ask the Applicant to give that information to the IAA. 25 His Honour accepted that the appellant had made the claim that the roads were not safe in his initial application for the protection visa, however noted that the Authority concluded that during the interview between the delegate and the appellant, the appellant did not give a clear indication of how often or how many times he travelled to Kabul in the years preceding his departure. His Honour continued: 40. In those circumstances, it does not seem to me that there was any particular information that was not before the IAA on this matter. The Applicant had had plenty of opportunity to put the material before the delegate and had put what it is that he could. The Applicant was asked a number of times about this matter and the sum total of what was before the IAA was illustrated in paragraph 14. 41. With regards to the financial capacity of the Applicant, it is clear that he has said that he was making money and more money once he started dealing with the tobacco buyers in Kabul. There was only one time that that the Applicant claimed that his shipment to the buyers in Kabul was stopped and the IAA did not accept that such an incident happened, in any event. 42. The evidence before the IAA was that the business is still being conducted by the Applicant's brother in Afghanistan. The evidence of the Applicant was, between 2010 and 2012, there were many travels to Kabul though it would seem on the own evidence of the Applicant that there were many times so the vast majority of times or the majority of times he was not the person who was driving. It was a person that had been hired by him to do so. When one looks at all of that information one then has to look at what it was that the IAA ended up finding. 43. At paragraph 29 the IAA said this: 29. On the evidence, Afghans who have returned from western countries may be at risk of harm if evidence of their having lived in western country is discovered when they encounter Taliban, or some other insurgent AGE, in an insecure area like some of the districts between Kabul and the Hazarajat. Ghorband and Jalrez are insecure areas of this kind. However, DFAT reporting which was before the delegate indicates that Hazaras unwilling to take the risk of travelling by road and able to afford the cost have the option to fly on a weekly service from Kabul to Bamyan for a fare of approximately USD100. As has been noted above, service providers delivering humanitarian assistance have been accessing the applicant's district of Surkh-e Parsa, and also to Shekhali, from Bamyan rather than from Kabul owing to the security problems affecting the roads in Parwan's other districts. Given that the applicant's family's tobacco continues to do business I am satisfied the applicant would be able to afford the fare for such a flight from Kabul to Bamyan even if he received no financial assistance from Australia following his arrival at Kabul's international airport. 44. Whilst it may be said that the Applicant was not asked and he could have been in a position to give such evidence the IAA did have evidence from the Applicant, as I've said, as to what his financial situation was because of the way in which the business was being run. 45. It was then unnecessary for the IAA to consider using its power under s.473DC(3); that is, because it had sufficient information already before it. It was not unreasonable then for the Tribunal to act in the way that it has. The conclusions that the IAA have come to in paragraphs 33 and 34 are conclusions that were open to it on the evidence that was before it. The evidence that was before it was sufficient for it to make such conclusions. 46. In my view, the situations of this matter are totally different to the situation that obtained in the case of CRY16 (Supra). 47. Therefore, that ground also fails.

Appeal to the Federal Court 26 In his notice of appeal filed on 19 September 2018, the appellant relies on the following grounds of appeal: 1. The circuit court's decision was unreasonable. 2. The Circuit Court's decision was an improper exercise of power. 3. Circuit court failed to interpret and/or apply s 36 and/or ss5H of 5 LA of the Migration Act 1958. 4. The circuit court failed to interpret and/or apply Part 7AA of the Migration Act 1958. (Errors in original.) 27 The appellant did not file written submissions. In summary, he submitted at the hearing through an interpreter as follows: Travelling from the appellant's home to Bamyan and then by plane from Kabul for, for example, medical treatment was "not possible"; The road between Bamyan and his home village was in a poor state, and it was not possible to rent a vehicle in Bamyan to travel that road; It was difficult to travel from his home village to Kabul for medical treatment within a reasonable period of time; and The decision of the Authority improperly diverged from the decision of the delegate in respect of the risk to the appellant in travelling within Afghanistan. 28 The Minister filed written submissions, and was legally represented in Court by Ms Helsdon of Sparke Helmore Lawyers. The Minister submitted, materially: The lack of particularity of the grounds of appeal made it impossible to respond in any meaningful way; The Minister had reviewed the decision of the primary Judge and the Authority's reasons for identifiable error and none had emerged; The primary Judge's conclusion in respect of ground 1 that "claims information" was "new information" for the purposes of s 473DC(1) was correct; and In respect of the fourth ground of appeal it was not legally unreasonable for the Authority not to consider exercising its discretion pursuant to s 473DC(3) because the Authority was able to and did make a legally reasonable decision based on the information already before it. 29 In my view, the grounds of appeal have no merit. I agree with the submission of the Minister that the lack of particularity in the grounds means that they are so broad as to be virtually meaningless. 30 In relation to the claim before the primary Judge concerning the reference by the Authority to "new information", I note the extensive and detailed reference at [3], [4], [5] and [6] of the Authority's reasons to new information provided by the appellant's representative on various dates for the Authority's consideration. I note further that the primary Judge gave detailed consideration to this issue at [19]-[30] of his Honour's decision. No errors in this reasoning have been identified. On examination, I am unable to identify errors in the reasoning of the primary Judge, or any errors affecting the jurisdiction of the Authority. In this context I particularly note the reminder by the High Court in Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at [30] that reasons for a decision under review ought not be construed minutely and finely with an eye keenly attuned to the perception of error. 31 Insofar as concerns regarding divergence between the decision of the delegate and the reasons of the Authority, I note in particular the observations of the Full Court in DGZ16 v Minister for Immigration and Border Protection [2018] FCAFC 12 at [72] that Pt 7AA contemplates that the Authority will evaluate for itself the material considered by the delegate, and that the regime does not require the Authority to notify the visa applicant that it is considering taking a different view, adverse to the applicant, of the material considered by the delegate. 32 In relation to the appellant's submissions concerning the safety and practicality of travel from Kabul to his home village via Bamyan, I note that at [30] of its reasons the Authority gave detailed consideration to such issues. A challenge to such factual findings on the part of the appellant invites impermissible merits review by this Court.

conclusion 33 The appropriate order is that the appeal be dismissed with costs. I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier.