EOF17 v Minister for Immigration and Border Protection

1. The appeal be allowed.
2. Order (1) made by the Federal Circuit Court of Australia be set aside and in lieu thereof it be ordered that: (a) The decision of the Immigration Assessment Authority dated 12 September 2017 be set aside. (b) The matter be remitted to the Immigration Assessment Authority for determination in accordance with law. (c) The first respondent pay the applicant's costs of the application as agreed or taxed.
3. The first respondent pay the appellant's costs of the appeal as agreed or taxed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

JAGOT J: 1 I have decided that this appeal should be allowed. My reasons follow. 2 The appellant is a Shia Hazara from Afghanistan. He arrived in Australia by boat in 2013. He applied for a protection visa in 2016. In his accompanying statement he said that: I believe members of the Taliban and other organisations such as Islamic State will harm me. There are many reports that show that Hazara people are targets for attacks by these groups. … Authorities in Afghanistan are very corrupt and can easily [be] bought or swayed. Further, discrimination against Hazara people in Afghanistan has become institutionalised and official authorities allow and often encourage this discrimination, violence and harm to occur. 3 In an interview with the delegate the appellant said that he had participated in a demonstration in Canberra and a video showing him doing so had been distributed which "cannot be hidden from fanatical people". The demonstration concerned justice for Hazaras. There was an electrical line to be built in Afghanistan which Hazaras had demonstrated about in Afghanisation resulting in more than 400 people being killed or injured involving a "conspiracy by government". He said the video showing him demonstrating "might be one of the reasons if they find me [but] maybe this might be small evidence for them". By "they" and "them" he meant "Taliban, Daesh, these people". The statements followed earlier assertions by the appellant in the interview that if he returned to Afghanistan "they" might kill and torture him. By "they" he meant the "Taliban including with other fanatical groups" and that "50% of Taliban are still in Afghan government, they work. So if I went from here in no time they will find out about me that I have been here. Because Afghan government is not honest …As I told you before that 50% of Taliban play a role in Afghan government. So like during the day, they are in government clothes, at night they become Taliban. So they are two-faced…so for that reason if I return back so I cannot be hidden there so they can soon they will identify me and find out about me". He said his name was "on the blacklist of the Taliban. So they know that I left my country, my area, my village so they are all, they are well aware of that. Even if I leave here and go back there so that would be the same story. They are aware I have left Afghanistan. Similarly if I go from here, they will find out that I entered Afghanistan". 4 When asked if he was saying that 50% of the Afghan government are Taliban members he said "yes", that this had been proved and explained that: There was a demonstration 3 months ago…in Kabul. Big demonstration. So the government turned this to be…it became very ugly and so this demonstration turned out to, many people were killed in this demonstration. So there are other examples like this happens in Afghanistan. So for that reason that I am saying that 50% of Afghan government are Taliban. So Taliban and Pashtun and the government is also Pashtun. 5 The delegate's report summarised the appellant's claims including this statement: The applicant fears that his video-documented participation in a demonstration in Canberra, ACT in mid-2016 could be perceived as anti-government. 6 The delegate summarised the appellant's evidence in the interview about his participation in the demonstration and associated fears in the report as follows: Participation in a demonstration in Canberra, ACT The applicant indicated that his participation in a demonstration in Canberra, ACT in mid-2016 is one of the reasons he fears returning to Afghanistan, noting that it is "a very small or minor reason". The applicant claimed that videos (which "have been distributed") shows that he was present at the demonstration and that such videos "cannot be hidden from fanatical people". He claims that such videos may be important to them and that they might have seen it. The applicant stated that if the Taliban wanted to follow someone, they would be able to follow them from the video. The applicant claims that a video of the demonstration in Canberra appeared on Facebook. The applicant described the event as "...a general demonstration organised for all Hazara people, all over the world. It was about justice for Hazaras." The applicant stated that the demonstration protested against a proposal made by the Afghan government to change the planned route for a new electricity line. The applicant was asked to explain how his participation in the demonstration heightens his fear of returning to Afghanistan. He stated "This may be one of the smallest problems...It might be one of the reasons if they (the Taliban/Daesh) find me...Maybe it might be small evidence for them." It was put to the applicant that it seemed highly speculative that he would be recognised by a member of the Taliban or Daesh as a participant in the demonstration and that this would be used against him. The applicant stated "Yes, I speculate. My problem is not mainly participation in Canberra's demonstration...It's not a big issue for me. It becomes more problematic if they see me there - if they identify me by watching that movie..." It was put to the applicant that in regards to the video, it seemed highly improbable that members of the Taliban or Daesh would watch the video, be able to identify him from the video or be looking for him in the video in the first place. The applicant indicated that it did not seem improbable from his perspective as he believes that his name is on a Taliban blacklist. Country information confirms that in May 2016, thousands of ethnic Hazaras attended demonstrations in various parts of the world to protest against a proposal to change the planned route for a new electricity transmission line in Afghanistan. Demonstrations opposing the government's decision occurred in cities such as Kabul, Canberra, London, Washington D.C, Tokyo, Berlin, Qom/Qum (Iran) and Istanbul. For the purposes of this assessment, I accept that the applicant attended such a demonstration in Canberra. The applicant did not convey any satisfactory reasoning that would indicate that his participation in such an event would heighten his profile. The applicant failed to articulate how and why his participation in such an event would be construed as "problematic". Given the circumstances by which the applicant's claims on this matter were established, and with consideration to the applicant's personal circumstances, I consider that it is implausible that the applicant's fear of being identified and persecuted as a result of attending such a demonstration is credible. As such, this claim will not be addressed any further within this decision record. 7 The delegate refused the application for a protection visa. 8 The Minister referred the decision to the Immigration Assessment Authority for review. By a submission dated 16 February 2016 the representatives for the appellant said that: The applicant's protection claims are summarised in the decision of the DIBP. 9 The Authority affirmed the decision not to grant the appellant a protection visa. In its reasons the Authority said at [1]: The referred applicant (the applicant) claims to be a Shia Hazara from Afghanistan. On 8 April 2016 he lodged an application for a safe haven enterprise via (SHEV) claiming to fear harm from the Taliban and Daesh due to his Hazara ethnicity and his Shia religion, his employment with a non-government organisation (NGO), his western links arising from his travel to Australia and his participation in a demonstration in Australia. 10 At [26] and [27] the Authority said: The applicant claims that in mid 2016 he participated in a Hazara protest in Canberra which was recorded and placed on social media and fears that if the Taliban became aware of his involvement this would place him at a higher risk of harm on return. I accept that the applicant may have participated in a demonstration in Australia. After consideration of his account at interview I am satisfied that this conduct was otherwise than for the purpose of strengthening his claim to be a refugee and that section 5J(6) of the Migration Act does not apply. However there is no credible evidence to indicate, apart from the applicant's conjecture, that the Taliban would become aware of his involvement and be able to identify and target the applicant on return to Nawabad. The applicant would be returning to Nawabad where for reasons previously cited I have found there is not a real chance of harm arising from his previous employment and on the evidence returnees are not targeted by insurgents simply for being a returnee or failed asylum seeker with an imputed pro-western political opinion. I am not satisfied that the applicant as a Shia Hazara or as a returnee/failed asylum seeker from the west, who was involved in a protest in Australia faces a real chance of persecution upon return to Nawabad or Ghazni city in the reasonably foreseeable future. I am satisfied that the applicant could reside in Nawabad safely without fear of harm as a Shia Hazara or as a western returnee. I am not satisfied that the applicant has a well-founded fear of harm in Nawabad as a Shia Hazara or western returnee. 11 In the application to the Federal Circuit Court the appellant relied on a single ground of review, that the Authority had failed to consider the appellant's claim that his "video-documented participation in a demonstration in Canberra in mid-2016 could be perceived as anti-government". The Minister sought leave during the hearing before the Federal Circuit Court to rely on an affidavit that had been filed and served less than a week before the hearing. The primary judge refused leave: EOF17 v Minister for Immigration & Border Protection [2018] FCCA 3534 at [6]. The affidavit annexed a transcript of the interview between the delegate and the appellant. This transcript includes the statements set out at [3] of these reasons. As a result, in deciding whether the appellant had made a claim that to fear persecution because his involvement in the demonstration could be perceived as anti-government, the primary judge relied solely on the delegate's reasons and, in particular, the delegate's summary set out in [6] of these reasons. On the basis of that material the primary judge concluded that the appellant had not established that he claimed to fear harm because he might be perceived to be anti-government as a result of the demonstration: at [11]. Accordingly, the Authority's decision was not affected by jurisdictional error. 12 In this appeal the appellant sought to rely on an additional ground of review, that the Authority committed a jurisdictional error because it failed to consider the appellant's claim that he feared harm from Daesh (being a name for the terrorist organisation also known as Islamic State) by reason of his participation in the protest. The Minister did not object to the appellant being granted leave to raise this additional ground of review, not put to the primary judge, provided the Minister was granted leave to tender the affidavit rejected below. I granted leave to the appellant to raise the additional ground and to the Minister to tender the affidavit annexing the transcript of the interview between the delegate and the appellant. It is apparent that the Authority had access to either a transcript or recording of this interview, which the Authority referred to in its reasons at [14] and [15] as the "SHEV interview". 13 The appellant contended that it was apparent from the transcript of the interview that he had claimed to fear harm as a result of his video-documented involvement in the demonstration because he could be perceived as anti-government and from Daesh. The appellant also contended that if it was not apparent that the appellant had made such claims in the interview he nevertheless made the first of these claims to Authority because in the submission on his behalf to the Authority it was said that: The applicant's protection claims are summarised in the decision of the DIBP. 14 This, it was submitted for the appellant, incorporated that part of the summary in which the report of the delegate said the appellant "fears that his video-documented participation in a demonstration in Canberra, ACT in mid-2016 could be perceived as anti-government". 15 As to the appellant's first ground of review, the Minister contended that the appellant had not claimed to fear that his video-documented participation in a demonstration in Canberra, ACT in mid-2016 could be perceived as anti-government. Rather, the appellant had made a single claim to fear harm from extremist groups including the Taliban. The Minister submitted that this was apparent from the transcript of the interview and the appellant's repeated references claiming to fear harm from "them" and "they" meaning the Taliban, Daesh and "these people". Further, those extremist groups were themselves anti-government. Accordingly, it was submitted, the Authority was entitled on the material to characterise the claim as the appellant fearing harm at the hands of the Taliban and was not bound by the delegate's reasoning or the delegates wrong description of the applicant's claims: BJB16 v Minister for Immigration and Border Protection [2018] FCAFC 49; (2018) 260 FCR 116 at [71] and Minister for Immigration and Border Protection v EEI17 [2018] FCAFC 166 at [48]. The reference to the delegate's summary in the appellant's submission to the Authority, the Minister submitted, did not mean that the claim to fear harm because of his participation in the demonstration was made. The only agents of harm the appellant identified were extremist groups such as the Taliban. The Authority found at [26] that there was "no credible evidence to indicate…that the Taliban would become aware of his involvement and be able to identify and target the [appellant] on his return to Nawabad". Further, the fact that the Authority did not refer to the delegate's wrong characterisation of the appellant's claims or the appellant's asserted adoption of the delegate's summary of his claims, does not mean that these matters were overlooked. Rather, it suggests the Authority did not consider these matters material. 16 As to the appellant's second ground of review, relating to Daesh, the Minister submitted that the appellant made only one claim, to fear harm from extremist groups, and did not make a distinct claim to fear harm from Daesh. In any event, the Tribunal found at [26] that "returnees are not targeted by insurgents simply for being a returnee or failed asylum seeker with an imputed pro-western political opinion". The Minister referred to Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at [95] as follows: The failure to refer to one of the alternative bases on which an applicant for a protection visa based a claim would, in many cases, reveal a failure to take account of relevant considerations or an error of law such as would enable judicial review on the grounds stated in s 476(1)(b), (c) and (e). Cases can, however, readily be imagined where the factual findings relating to one asserted basis for protection necessarily and inevitably denied any other basis for protection. 17 It may be accepted that the Authority is not bound by any factual finding or the method of reasoning of the delegate. It may also be accepted that the Authority must identify the claims made in support of the application for itself. This does not mean, however, that the Authority is the final arbiter of that issue. If a claim is clearly made then the Authority is bound to consider the claim: AYY17 v Minister for Immigration and Border Protection [2018] FCAFC 89. 18 In contrast to the primary judge, I have the benefit of the transcript of the delegate's interview with the appellant. The relevant parts of the transcript disclose that the delegate correctly identified the appellant as having claimed fearing "that his video-documented participation in a demonstration in Canberra, ACT in mid-2016 could be perceived as anti-government". The appellant was saying that the Taliban would know of his return and would be able to identify him because 50% of the Afghan government are members of the Taliban. It was for this reason, that members of the Taliban were also members of the government presumably with access to government information, that the appellant asserted he would not be able to hide and would be harmed as he was on a Taliban blacklist. In the context of the appellant's other evidence during the interview, that the demonstration was against the government, that the demonstration resulted in Hazara people being killed and injured as part of a government conspiracy, and that the Taliban are Pashtun and the government is Pashtun, all support the objective characterisation of the appellant's claim as one of fearing harm by the Taliban and the government. 19 The Authority does not refer to the appellant's fear of the government in its reasons. It cannot be inferred that the Authority considered this aspect of the appellant's claims to be immaterial. The assertion that he would not be able to hide from the Taliban because 50% of the government was Taliban was objectively material to the appellant's claim to fear harm. It must be inferred that the Authority overlooked the appellant's claim about the government, the role of the government in ensuring he would be identified and could not hide, and his associated fear of harm. Nor can it be concluded that the way in which the Authority dealt with the appellant's claims about the Taliban in [26] and [27] made his claims about the government immaterial or constituted a sufficient consideration of those claims. The Authority found that there was no evidence that the Taliban would become aware of the appellant's involvement in the demonstration and would be able to identify and target the appellant on his return to Nawabad. Yet the appellant's claim that the Taliban were members of the government and that he was on a Taliban blacklist, taken with the claim that the demonstration was against the government, was some evidence that the Taliban would be able to identify and target the appellant. Similarly, the Authority's finding that returnees are not targeted by insurgents merely for being a returnee or failed asylum seeker with an imputed pro-western political opinion does not deal with the appellant's claim that he would be targeted because of his documented involvement in an anti-government demonstration. 20 For these reasons the appellant's first ground of review should be upheld. 21 The appellant's second ground of review, relating to Daesh or Islamic State, presents the appellant with greater difficulty. The appellant's evidence did not suggest that members of Daesh were also members of the government. That evidence did not identify the appellant's involvement in the anti-government demonstration as a reason he feared harm from Daesh. In these circumstances the appellant's claims could only be understood as fearing harm from extremist groups including Daesh as a Hazara Shia, returnee and failed asylum seeker. The Authority's conclusions in [26] and [27], read fairly and reasonably, reject the appellant's claims to fear harm from insurgents as a Hazara Shia, returnee and failed asylum seeker. Given the generality of the appellant's claims about Daesh, the Authority's reasoning in [26] and [27] constitutes sufficient consideration of these claims. 22 For these reasons the appellant's second ground of review should be rejected. 23 Orders will be made accordingly. I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jagot.