AZABO v Minister for Immigration & Anor
[2011] FMCA 772
•27 October 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| AZABO v MINISTER FOR IMMIGRATION & ANOR | [2011] FMCA 772 |
| MIGRATION – Review of Independent Merits Reviewer – off shore entry person – applicant Hazara Shia Afghani – applicant had fled from Kandahar to Pakistan following the death of his father at the hands of the Taliban – IMR found applicant had well founded fear of persecution in Kandahar as a result of political views likely to be implied by him – consideration of whether reasonable for applicant to seek refuge in another port of Afghanistan, namely Kabul – what is reasonable in the sense of being practical – jurisdictional error – whether IMR asked correct questions. |
| Migration Act 1958 (Cth), ss.5, 36, 46, 195, 476, 477 |
| Plaintiff M61/2010E v Commonwealth of Australia (2010) 272 ALR 14 Fisher v Minister for Immigration and Citizenship and Another (2007) 162 FCR 299 SZNZI v Minister for Immigration & Anor [2010] FMCA 57 SZQEN v Minister for Immigration and Anor [2011] FMCA 648 SZATV & Minister for Immigration & Citizenship & Anor (2007) 233 CLR 18 Craig v South Australia (1995) 184 CLR 163 Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 Attorney General of Canada v Ward (1993) 103DLR (4th) 1 Randhawa v Minister for Immigration, Local Government & Ethnic Affairs (1994) 52 FCR 437 Januzi v Secretary for State of Home Department for Home Department [2006] 2AC426 Minister for Immigration & Multicultural Affairs v Khawar (2002) 210 CLR 1 Plaintiff M13-2011 v Minster for Immigration & Citizenship [2011] HCA 23 |
| Applicant: | AZABO |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | JOHN BLOUNT IN HIS CAPACITY AS INDEPENDENT REVIEWER |
| File Number: | ADG 78 of 2011 |
| Judgment of: | Brown FM |
| Hearing date: | 5 August 2011 |
| Date of Last Submission: | 5 August 2011 |
| Delivered at: | Adelaide |
| Delivered on: | 27 October 2011 |
REPRESENTATION
| Counsel for the Applicant: | Mr Hanna |
| Solicitors for the Applicant: | Bourne Lawyers |
| Counsel for the Respondents: | Mr d'Assumpcao |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The time for making the application provided by section 477(1) of the Migration Act 1958 (Cth) is extended up to and including 8 April 2011.
Application dismissed.
Applicant to pay the First Respondent’s costs fixed in the sum of $5,850.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT ADELAIDE |
ADG 78 of 2011
| AZABO |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| JOHN BLOUNT IN HIS CAPACITY AS INDEPENDENT REVIEWER |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant was born in 1985 in Kandahar Province, Afghanistan. He is a Shia Muslim and of Hazara ethnicity. He arrived at Christmas Island, by boat, on 26 March 2010, without valid travel documents.
As his entry was not authorised by the Australian authorities, he is to be regarded as an off-shore entry person as defined by section 5 of the Migration Act 1958 (Cth) hereinafter referred to as “the Act”.
On 11 June 2010, with the assistance of a migration agent, the applicant applied to officers of the first respondent for a refugee status assessment. In a statutory declaration in support of his application, he indicated that he had been living in Quetta, Pakistan, with his wife and child, since the murder of his father by members of the Taliban in Afghanistan. He indicated that he was fearful of returning back to Afghanistan because he was both Hazara and Shia.
The applicant’s claim for refugee status depended on him satisfying the definition of “refugee”, provided by Article 1A(2) of the United Nations 1951 Convention and 1967 Protocol Relating to the Status of Refugees (“Refugees Convention”) which provides that a “refugee” is a person who:
“… owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”
On 14 June 2010, the applicant was interviewed by an officer of the Department of Immigration & Citizenship in respect of his claim for protection pursuant to the provisions of the Refugees Convention.
On 10 August 2010, this officer determined that the applicant did not meet the necessary definition of refugee and accordingly was not someone to whom Australia owed a protection obligation under the Refugees Convention.
Following this decision, the applicant made a request for an Independent Merits Review (“the IMR”) of his claim for protection pursuant to the Refugees Convention. This independent merits review was conducted by the second respondent and is the subject of the court’s judicial review in these proceedings.
In support of his application for merits review, the applicant provided a further statutory declaration, in which he stated that he had not lived in Afghanistan since leaving with his family approximately thirteen years beforehand. He stated that he no longer had any relatives in Afghanistan, including in Kandahar Province and the national capital, Kabul.
The applicant stated his view that Kandahar was the “spiritual stronghold of the Taliban”. As such, he did not believe that Kandahar was a place which was safe for him and he doubted that the authorities there would be able to protect him because of his Hazara ethnicity and Shia faith.
On 21 October 2010, the applicant, through the agency of his migration agent, made a written submission to the independent merits reviewer. With this submission was provided a list of sources providing information on the current security and general situation in Afghanistan. In this submission, the applicant provided further information regarding his departure from Afghanistan.
He stated that he had left Afghanistan, as a twelve year old, following the public execution of his father by members of the Taliban. The applicant stated that he believes his father was so targeted because he was believed to have governmental links and because of his Hazara ethnicity and Shia faith.
The applicant indicated that he had lived for the past thirteen years in Quetta, where he had been employed as a mobile street vendor. He had studied English in Quetta for three months in 2009. Quetta is a large city.
The applicant submitted that, should he return to Afghanistan, his home village would be his initial point of reference. This village is in the province of Kandahar. The applicant submitted that the security situation in Kandahar, particularly for Hazaras, was volatile and deteriorating, as a result of Taliban and other insurgent activities.
The applicant particularly submitted that it was neither reasonable nor relevant to his personal circumstances that he relocate to a location in Afghanistan other than Kandahar. He pointed out that prior to leaving Afghanistan, he had only ever lived in Kandahar.
In addition, the applicant submitted that persecution against Hazaras and Shias was widespread throughout Afghanistan. As such, the current Afghanistan government had little control over insurgent groups throughout Afghanistan, such as the Taliban, and would be unable to offer the applicant protection in Afghanistan.
As part of the IMR process, the second respondent interviewed the applicant on 13 November 2010. During the course of this interview, the applicant stated that he was fearful he might personally be a target for violence because he was the son of a person who had been killed by the Taliban.
In response to questions regarding the viability of his return to a location in Afghanistan other than Kandahar, particularly Kabul, the applicant stated that he knew no one in Kabul and it would be difficult for him to survive in the city. In addition, the applicant claimed that, if he returned to Kabul, it would be known that he was a returnee from a western country and this, of itself, might result in him being targeted or harmed.
The independent merits reviewer completed the review process on 24 December 2010 and recommended that the applicant did not meet the criteria for a protection visa, pursuant to section 36(2) of the Act, as he did not fit within the definition of refugee pursuant to the Refugees Convention.
On 17 January 2011, the applicant was provided with the reasons of the second named respondent under cover of a letter from the Department of Immigration & Citizenship. The Department indicated that it accepted the recommendation of the independent merits reviewer. The letter also contained the following statement:
“You may be aware that on 11 November 2010 the High Court of Australia found that irregular maritime arrivals (people who travel to Australia by boat without a visa and who arrive at or are transferred to Christmas Island) can seek judicial review if they are found not to be a refugee.”
The applicant commenced such a process seeking judicial review, in this court, on 8 April 2011. The court’s jurisdiction is founded pursuant to section 476 of the Act. Pursuant to this section, the Federal Magistrates Court has the same original jurisdiction, in relation to migration decisions, as the High Court has under paragraph 75(v) of the Constitution. This paragraph grants the High Court original jurisdiction in all matters in which a writ of mandamus or prohibition or an injunction is sought against an officer of the Commonwealth.
In his application, the applicant seeks an injunction restraining the first named respondent from relying on the recommendation of the independent merits reviewer in respect of his assessment of the applicant’s status under the Refugees Convention and a declaration that the recommendation was not made in accordance with law.
Pursuant to section 477 of the Act, the time prescribed for making such applications is within 35 days of the making of the decision which is sought to be challenged. Accordingly, the application herein is prima facie out of time. The applicant also seeks an order extending time.
The grounds of the application rest on the applicant’s assertion that the second respondent fell into jurisdictional error in considering the legal principles applicable to the determination of the issue of whether it was open to him (the applicant) to live in a part of Afghanistan other than Kandahar, particularly in Kabul.
The principle of law which it is asserted the second respondent has misconstrued or misapplied can be summarised in the expression “the principle of internal relocation”. More fully, a person, though found to have a well founded fear of persecution, as a result of his experience in one particular part of his country of origin, should nonetheless be excluded from refugee status, because by reference to other relevant circumstances, it would not be unreasonable to expect him to seek refuge in another part of the same country.
In particular, the applicant asserts that the second respondent fell into jurisdictional error, on the following basis:
a) The Review found that the applicant did face a real fear of harm in Kandahar due to the Taliban imputing the political beliefs of the applicant’s father to the applicant given the fact that the Taliban executed the applicant’s father.
b) The Review found that the applicant could live in Kabul because the general circumstances were not as dangerous for Hazaras generally;
c) The Review, although it purported to do so, failed to adequately consider the applicant’s personal circumstances as required by law when considering whether it was reasonable for the applicant to relocate within their own country: SZATV v Minister for Immigration [2007] HCA 40.”
The second respondent has filed a submitting appearance. The first respondent’s position is that the application herein should be dismissed. It is opposed to any extension of time being granted.
The legal framework
The applicant arrived in Australian Territory, by boat, at Christmas Island. Christmas Island is defined in the Act as an “excised offshore place”. As such, as the applicant is not an Australian citizen, by virtue of the Act, he is deemed to be an “offshore entry person” and liable to designation as an “unlawful non-citizen”.
Pursuant to section 46A a person who is an offshore entry person and designated as an unlawful non-citizen, whilst in Australia is not authorised to make an application for a visa to remain in Australia via the orthodox channels administered by the Department of Immigration & Citizenship.
However, pursuant to section 46A(2) the Minister for Immigration & Citizenship is granted a discretion to grant an offshore entry person a visa if the Minister “thinks that it is in the public interest to do so… .” The nature of the ministerial discretion, contained in section 46A(2) and the constraints on its exercise, were considered by the High Court in Plaintiff M61/2010E v Commonwealth of Australia.[1]
[1] See Plaintiff M61/2010E v Commonwealth of Australia (2010) 272 ALR 14
One of the consequences of section 46A was to preclude an offshore entry person making an application for a protection visa pursuant to section 46 of the Act. Protection visas are available to persons in respect of whom it is found that Australia owes a protection obligation as a result of its ratification of the Refugees Convention.
However, as the High Court pointed out in Plaintiff M61/2010E, the contextual background of the Migration Act is to respond legislatively to “the international obligations which Australia has undertaken in the Refugees Convention …”[2]. As such there appears to be a tension between this exclusionary provisions of section 46A(1) and Australia’s obligations under the Convention.
[2] Ibid at paragraph 27
Accordingly, although section 46A(1) precluded an offshore entry person from applying specifically for a protection visa, in light of Australia’s obligations under the Refugees Convention, the Minister was personally empowered to determine whether the public interest dictates that such a person should nonetheless be permitted to apply for refugee asylum in Australia.
As a result of this legislative discretion, invested in the Minister, an administrative protocol was devised by the Department for Immigration & Citizenship, which was intended to provide specific advice to the Minister as to whether Australia’s protection obligations under the Refugees Convention were engaged in the case of each person who arrived in Australian Territory at an excised offshore place (such as Christmas Island) and claimed to be a refugee.
This protocol envisaged two distinct and independent steps. Firstly, each such arrival would be subject to a Refugee Status Assessment (“the RSA”) by officers of the department. Secondly, there would be an IMR of each such Refugee Status Assessment.
The purpose of the IMR was to make a recommendation, to the Minister, about whether Australia had protection obligations to any persons claiming so. If the reviewer concerned did conclude that Australia did owe a protection obligation to any such claimant, advice would be provided to the Minister in such terms so that the discretion arising under section 46A(2) could be properly exercised.
The discretion vested in the Minister, pursuant to section 46A(2) is to be exercised by the Minister personally. Accordingly, the RSA and IMR were processes arising as a result of a ministerial direction. Whilst these processes were occurring, in effect, any offshore entry person seeking the exercise of the ministerial discretion was necessarily held in detention.
Accordingly, whether a person was to be the subject of the ministerial discretion, arising under section 46A(2), was characterised by the High Court as being a question “wholly within the control of the Executive”.[3] As was the continuing detention of the person concerned, whilst the exercise of that discretion was exercised. This situation created procedural obligations on the part of the Minister and created jurisdictional implications.
[3] Ibid at paragraph 65
In Plaintiff M61/2010E the High Court held that because the Minister has decided to consider exercising powers under the Act in every case where an offshore entry person claims to be owed protection obligations, the RSA and IMR processes were taken for the purposes of the Migration Act.
Because those inquiries had the consequence of prolonging the detention of any person seeking the exercise of the discretion, there was a direct impact on the rights and interests of the person concerned to freedom from detention, as a consequence of executive direction. Accordingly, those making the inquiries were bound to act according to law and afford procedural fairness to the persons affected by the necessary decisions arising.
The High Court summarised the “most important of the steps” leading to that conclusion as follows:
(a) Because the Minister has decided to consider exercising power under either s 46A or s 195A of the Migration Act in every case where an offshore entry person claims to be a person to whom Australia owes protection obligations, the RSA and IMR processes taken in respect of each plaintiff were steps taken under and for the purposes of the Migration Act.
(b) Because making the inquiries prolonged the plaintiffs' detention, the rights and interests of the plaintiffs to freedom from detention at the behest of the Australian Executive were directly affected, and those who made the inquiries were bound to act according to law, affording procedural fairness to the plaintiffs whose liberty was thus constrained.
(c) The inquiries were not made according to law and were not procedurally fair.
(d) Because the Minister is not bound to consider exercising either of the relevant powers, mandamus will not issue to compel consideration, and certiorari would have no practical utility. But in the circumstances of each case, a declaration should be made to the effect described earlier.”[4]
[4] Ibid at paragraph 9
It was as a result of the High Court’s decision in Plaintiff M61/2010E that an officer of the Department of Immigration & Citizenship wrote to the applicant on 17 January 2011 advising him that he was entitled to seek judicial review of the second respondent’s recommendation following the IMR.
In this regard, it is important to note that the second respondent is not per se an officer of the Commonwealth. Rather he has a contractual relationship with the department to provide advice regarding the merits of any offshore entry persons application for refugee status.
In Plaintiff M61/2010E the High Court held as follows in respect of its jurisdiction to deal with an application to seek judicial review of a decision pertaining to an offshore entry person:
“The jurisdiction of the Court is found in s 75(iii) (as matters in which the Commonwealth, or a person being sued on behalf of the Commonwealth, is a party), s 75(v) (as matters in which mandamus and injunction are sought against the Minister and either a departmental officer or the Secretary of the Department – all officers of the Commonwealth) and even, perhaps, s 75(i) (as matters arising under any treaty – the Refugees Convention and the Refugees Protocol). Accordingly, it is appropriate to leave, for another day, the question whether a party identified as "an independent contractor" nevertheless may fall within the expression "an officer of the Commonwealth" in s 75(v) in circumstances where some aspect of the exercise of statutory or executive authority of the Commonwealth has been "contracted out".”[5]
[5] Ibid at paragraph 51
Counsel for the first respondent has not sought to advance any argument that the jurisdiction of this court has not been enlivened pursuant to the provisions of section 476 of the Migration Act. In any event, the applicant seeks an injunction restraining the Minister from relying upon the recommendation of the Independent Merits Reviewer.
The time limit issue
Pursuant to section 477(2) of the Migration Act this court has a discretion to extend the time for the making of an application pursuant to section 476. The section reads as follows:
“477(2) The Federal Magistrates Court may, by order, extend that 35 day period as the Federal Magistrates Court considers appropriate if:
(a) an application for that order has been made in writing to the Federal Magistrates Court specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and
(b)the Federal Magistrates Court is satisfied that it is necessary in the interests of the administration of justice to make the order.”
In the present case, the applicant received the decision of the second respondent on 17 January 2011. His application for judicial review was filed on 8 April 2011. On my calculations, he is forty six days out of time.
In support of his application for an extension of time, the applicant filed an affidavit concurrently with his application for judicial review. He deposed that he was in immigration detention and had “no control” over his circumstances as a result.
As such, he contended that the interests of justice demanded that time be extended in his case, given any subsequent decision of this court would have serious implications for his “liberty and personal safety.”
These submissions were expanded upon by counsel for the applicant during the course of the hearing before me. Mr Hanna emphasised the novelty of his client’s application, given the recent provenance of the court’s jurisdiction, following the High Court’s decision in Plaintiff M61/2010E. It apparently took some weeks for the court to devise an appropriate form on which off shore entry persons might bring an application for judicial review of decisions effecting them.
In addition it was submitted that it was self apparent, given his circumstances of being in immigration detention, that the applicant would have had difficulty in accessing legal advice. Finally, it was asserted that the respondents had not suffered any demonstrable prejudice as a result of the delay, which in any event could not be described as amounting to a significant period of time.
The respondents do not point to any specific incident of prejudice arising to them if time is extended. Their only objection to extending the period is that the application is without merit and accordingly it would not be in the interests of justice for the court to extend time.
The issues raised by the applicant are clearly very significant ones to him personally. He has provided an explanation for the delay arising from his circumstances of detention and the legal novelty of the issues raised following the recent decision of the High Court regarding judicial review of migration decisions pertaining to off shore entry persons. I do not dismiss the veracity of those explanations, which seem to me to be reasonable ones given the applicant’s personal circumstances.
In Fisher v Minister for Immigration and Citizenship and Another, [6] Stone J suggested that the concept “…in the interests of the administration of justice” in section 477(2)(b) “…would involve consideration not only of the reasons for not meeting the original time limit but also whether the application, were the extension of time to be granted, would have any prospect of success.”
[6] Fisher v Minister for Immigration and Citizenship and Another (2007) 162 FCR 299
In SZNZI v Minister for Immigration & Anor[7] Smith FM identified two critical considerations relevant to the discretion to extend time pursuant to section 477(2)(b) firstly an explanation, reasonable to the circumstances for the party’s default and secondly that “the party in default had a material argument which, if heard and decided on its merits, might reasonably affect the determination of the rights and duties of the parties in a way different from that in the impugned order.”
[7] SZNZI v Minister for Immigration & Anor [2010] FMCA 57 at [11]
The arguments advanced by the applicant in this case are, in my view, not without prospects of success. The IMR found that the applicant had a well founded fear of persecution in his home province of Kandahar. The legal issues arising in this case turn on whether it is reasonable, in the sense of being practicable, for the applicant to relocate himself to another part of Afghanistan, namely its capital Kabul.
As such, the case raises issues, amongst others, as to how theoretically the applicant might travel from Kandahar to Kabul and how personally he would be able to sustain himself there. It seems to me that these issues are important ones and it is probable that there will be controversy as to how properly the IMR considered them. It is also not beyond the bounds of probability that a superior court might find my analysis of these issues to be wanting.
If I do not grant the applicant the extension of time sought by him, it may result in him loosing any entitlement to appeal against my finding.[8] This does not appear to me to be in the interests of the administration of justice. The time which has elapsed since time expired is relatively short. No specific prejudice arises to the Minister. In all the circumstances, I have decided to make an order under section 477(2) in the applicant’s favour.
[8] See SZQEN v Minister for Immigration and Anor [2011] FMCA 648 per Raphael FM at [14]
The Independent Merits Review
Given the emphasis in the submissions of the applicant on the internal relocation principle and the specific grounds of the application, I will attempt to summarise the IMR findings in respect of this issue.
The second respondent accepted that the applicant was of Hazara ethnicity and a Shia muslin, who had been born in Kandahar Province, Afghanistan. As such, it was accepted that the applicant and his family did not have lawful status in Pakistan.
The second respondent had regard to a number of independent sources regarding current conditions for Hazara Shias in Afghanistan.
He indicated that he had given particular attention to country information, in respect of Afghanistan, emanating from the Australian Department of Foreign Affairs and Trade.[9]
[9] See IMR at page 11
In summary, the information from the Department of Foreign Affairs indicated as follows:
·Conditions for the Hazara community in Afghanistan have improved significantly since the fall of the Taliban;
·Travel in central Afghanistan is potentially dangerous for all ethnic groups;
·Pashtuns and Hazaras are limited in their ability to move through districts dominated by the other group;
·Movement between Kabul and Ghazni has become increasingly challenging;
·Conditions facing Hazara returnees vary according to circumstances;
·It is more difficult for Hazaras to return to their areas of origin if they have been out of Afghanistan for years and have no networks there;
·Interlocutors reported that Hazaras would not be targeted because they had sought asylum in the west;
·Whether returnees would have a social network in Kabul, if they moved there, would depend on which province and district they came from, and the part of Kabul they were located in;
·However there is a cohesive Hazara community in Kabul;
·A Hazara human rights contact had assessed that it would be relatively easy for new arrivals to integrate into the city, where they can move freely.[10]
[10] Ibid at page 10
On the basis of this country information, the IMR did not accept that Hazara Shias were currently systematically targeted in Afghanistan or that societal discrimination against Hazaras was currently so severe as to constitute persecution. In particular, it was found that there was no evidence of a campaign, by the insurgency in Afghanistan to target Hazaras specifically.
In his written submission to the IMR, dated 21 October 2010, the applicant had relied on an article by Professor William Maley “On the position of the Hazara minority in Afghanistan”[11] In this article, Professor Maley had stated:
“There is no reason to believe that the underlying factors (both ethnic and sectarian) fuelling hostility towards Hazaras have dissipated.”
[11] See casebook at page 55 & 11
This context, the IMR indicated that he did not dismiss the historical background and concerns provided by Professor Maley in respect of possibility of individual Hazaras being subjected to persecution in Afghanistan and, in the light of the historical treatment of Hazaras in Afghanistan, Professor Maley’s caution regarding future developments for Hazaras.
These factors led the IMR to reach the following conclusion:
“… taking into account the established historical background and the undoubted animosity of many Pashtuns towards Shias for ethnic and religious reasons, the reviewer accepts that when Hazaras come to the adverse attention of the Taliban for some other substantive reason (for example, and most commonly, imputed political opinion of support for the government or foreign forces and/or antipathy towards the Taliban) their situation may be exacerbated by reason of their Hazara ethnicity and Shia religion. Furthermore, given the past history of Pashtun/Hazara relations in general, and Taliban/Hazara relations in particular, the reviewer is satisfied that the Taliban have a predisposition to perceive Hazaras as potential political opponents. Factors in a particular area may also be of significance.”[12]
[12] See IMR decision at page 13
In this context, the IMR found the applicant to be a credible and truthful witness. It was accepted that his father had been killed, in Kandahar, in 1996 or 1997, by the local Taliban, who had suspected him of political activity contrary to its interests.
The IMR also found that, as a general proposition, a person in Afghanistan could be targeted because of the political views of a close relative. These findings led the IMR to reach the following conclusion.
“The reviewer therefore accepts that there is a real chance (although by no means a likelihood, given the length of time which has elapsed and the claimant’s age at the time) that on return to Kandahar the claimant might be imputed by the local Taliban with the hostile political opinion or position which they had attributed to his father and that this might place the claimant in danger of harm amounting to persecution by reason of this imputed political opinion.
Uncontentious country information indicates that there is little realistic prospect of effective State protection in these circumstances.”[13]
[13] Ibid at page 13
Accordingly, the IMR found that the applicant met the criteria required to satisfy refugee status, under the Convention, because of the risk he might be subject to persecution, in Kandahar, as a Shia Hazara, because of political views, which might be attributed to him because of the earlier activities of his father. Therefore the focus of the reviewer’s considerations shifted to questions centred on whether the applicant might relocate somewhere within Afghanistan other than Kandahar.
In this context, it is necessary to stipulate the material available to the IMR concerning this issue. In his original statutory declaration, the applicant indicated that there was “no safe place” for Hazaras and Shias anywhere in Afghanistan.[14]
[14] See casebook at page 29
In his written submissions to the IMR dated 21 October 2010, the applicant submitted that it was not a “viable option” for him to relocate to Kabul. In support of this submission, the applicant relied on reports of insurgency attacks, during 2010, in Kabul and its environs.[15]
[15] See casebook at page 66-67
It was also submitted that the current Afghan government had little control over the activities of non-state actors, such as the Taliban, either in Kabul or Afghanistan generally.
In interview with the IMR, the applicant was asked his view as to the viability of his returning to live in another part of Afghanistan, particularly Kabul. This aspect of the interview is recorded as follows in the IMR’s statement of reasons:
“The reviewer put to the claimant that, having regard to the reports of specific security incidents provided by is adviser, violence in Kabul appeared to be basically directed against foreigners, public figures and institutions and at disrupting normal life and that none of those specific incidents appeared to have been targeted against Hazaras as such. In its September 2010 advice, DFAT had advised that there is a cohesive Hazara community in Kabul and that it would be relatively easy for new arrivals to integrate into the city, where they can move freely. The reviewer noted that the claimant had been living and working in a large city for a number of years so that he was not in the same position as an illiterate farmer with no other experience.
The complainant commented that once he goes back to Kabul and they know he is coming from a Western country, he might be killed. The reviewer commented that he had seen no compelling evidence that this was the case. Specific reports of individuals being harmed after return, upon close examination did not establish that being in Australia was the reason they were subsequently targeted or harmed.”[16]
[16] See Reasons for Decision at pages 5-6
On the basis of the country information available to him, particularly from the Department of Foreign Affairs & Trade, the IMR concluded that there was no credible evidence, which indicated that failed asylum seekers, returning from western countries, were submitted to generic persecution by either the Taliban or other non-state actors for that reason alone. In this context, the reviewer noted that the conditions faced by returning Hazaras varied according to their individual circumstances.
As indicated earlier, the IMR accepted that the applicant might attract adverse attention, in the event of returning to Kandahar, because of his association with his father and this attention might be exacerbated by his returning after a long absence overseas. However, given other factors relevant to Afghanistan generally, the IMR made the following finding of fact:
“… the reviewer does not accept that the claimant would face a real chance of persecution for that reason elsewhere, including in Kabul (where the evidence does not suggest that the Taliban is specifically targeting Hazaras in a systematic and discriminatory manner). The reviewer is not satisfied that the claimant would be sought, located or individually targeted in Kabul because of events in Kandahar 14 years ago or any residual suspicions in relation to this father. That leaves the question of whether it is, in practical terms, reasonable for the claimant to relocate away from Kandahar.”[17]
[17] See Reasons for Decision at page 14
The requirement for the IMR to consider the practicality of the applicant relocating to a location, in Afghanistan, away from Kandahar, arises as a result of considerations formulated by the High Court in SZATV.[18] In considering this issue, the IMR indicated that the reasonableness of any internal relocation would depend upon the individual circumstances of each case.
[18] See SZATV & Minister for Immigration & Citizenship & Anor (2007) 233 CLR 18 at 27
In this regard, the IMR accepted that the nature of rural life in Afghanistan made it both impracticable and unreasonable to expect anyone, let alone the applicant, to relocate to a rural area within Afghanistan, which was unfamiliar to him or her. As such, it was conceded that the only realistic option for the applicant in the present case was Kabul, which the independent country evidence indicated had a significant Hazara population.
In this context, the IMR accepted the Department of Foreign Affairs & Trade assessment that there was a cohesive Hazara community in Kabul and it was “relatively easy for new arrivals to integrate into the city where they can move freely.”[19]
[19] Ibid at page 14
In terms of the reasonableness of the applicant relocating himself to Kabul, the IMR made the following specific findings, which led him to the conclusion that it would be reasonable for him to relocate to Kabul and therefore he (the applicant) did not satisfy the criterion for a protection visa set out in section 36(2) of the Act:
“The reviewer notes that the claimant’s life and work experience has been in a large city (Quetta) rather than in a rural environment. Although the claimant states that he does not have any immediate or extended family in Kabul, he is an adult male 25 years of age with many years experience as a street vendor in Quetta. His situation is not the same as a person whose working life has been spent on a remote farm. It is undisputed that there is a very large Hazara community in Kabul, drawn from all parts of the country. The general insecurity arising from the Taliban insurgency is relevant, although not conclusive. The claimant and his adviser have cited continuing security incidents in Kabul but the reviewer notes that the evidence presented indicates that it is largely directed against foreigners and public figures and institutions. The reviewer is satisfied that the nature and incidence of such occurrences (and the extent to which ordinary citizens in Kabul may be directly affected) is such that in a city of several million people the risk of harm for an ordinary individual is, in the context of the total population, extremely small. The reviewer is satisfied that such incidents do not impact on the day-to-day security of an individual to such an extent as to make it unreasonable for a person to liver there to avoid persecution elsewhere.”[20]
[20] Ibid at page 14/15. Internet references citing the Hazara percentage component of the Kabul population omitted.
It is the submission of the applicant that the IMR fell into jurisdictional error in respect of how it construed the considerations applicable as to whether or not it was subjectively reasonable for the applicant to avail himself of internal state protection in Kabul, as opposed to Kandahar.
In particular, it is asserted that the IMR failed to consider the following issues as to whether it was reasonable to expect the applicant to relocate himself to Kabul:
a)No consideration was given as to the reasonableness of travel from Kandahar to Kabul and no inquiries were made of the applicant personally as to how dangerous it might be for him to undertake such travel;
b)No consideration was given as to how the applicant would economically sustain himself in Kabul and no inquiries were made of the applicant personally as to how he would sustain himself there;
c)No consideration was given to the applicant’s personal circumstances when the issue of how he would survive in Kabul was contemplated;
d)No consideration was given as to the facility of state agencies to protect the applicant in Kabul in the event his persecutors pursued him there;
e)No consideration was given as to the likelihood of future persecution of the applicant and other Hazaras in Kabul.
Accordingly, it was submitted that the IMR had failed to properly apply the “internal relocation” principle and so had fallen into jurisdictional error.
Legal considerations relating to jurisdictional error and the internal relocation principle
The seminal Australian case on jurisdictional error is Craig v South Australia.[21] In the case, the majority said as follows:
“If such an administrative tribunal falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal’s exercise or purported exercise of power is thereby affected, it exceeds its authority or power. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it.”
[21] See Craig v South Australia (1995) 184 CLR 163 at 179
The hearing before me is not a merits review, rather it is a judicial review. I must be careful not to confuse the two. It is the function of this court to determine whether the decision of the IMR was within its legal powers. It is not the function to examine the merits of the decision.[22] If it is established that the IMR has fallen into jurisdictional error, the decision he made is void because he did not have authority to make it.
[22] Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ
This type of jurisdictional error was described by the High Court in Minister for Immigration and Multicultural Affairs v Yusuf[23]:
“What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it.”
[23] See Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323
As this is a hearing directed towards the legality of the IMR’s decision, rather than its merits, I am required to give the applicable reasons a fair reading and not subject it to a minute construal “with an eye keenly attuned to the perception of error.”[24]
[24] See Wu Shan Liang (supra) at 272
The system of international protection of refugees, afforded by nation signatories to the Refugee Convention, has been described as a “surrogate” or “back up” form of protection available only to individuals who are not able to be protected from persecution by the legitimate authorities within their state of origin. Thus, it is said “the international community intended that persecuted individuals be required to approach their home state for protection before the responsibility of other states becomes engaged.”[25]
[25] See Attorney General of Canada v Ward (1993) 103DLR (4th) 1 per La Forest J quoted in Randhawa v Minister for Immigration, Local Government & Ethnic Affairs (1994) 52 FCR 437 at 441
The principle of internal relocation has been adopted into Australian domestic refugee law. In Randhawa v Minister for Immigration Black CJ said as follows:
“Although it is true that the Convention definition of refugee does not refer to parts or regions of a country, that provides no warrant for construing the definition so that it would give refugee status to those who, although having a well-founded fear of persecution in their home region, could nevertheless avail themselves of the real protection of their country of nationality elsewhere within that country. The focus of the Convention definition is not upon the protection that the country of nationality might be able to provide in some particular region, but upon a more general notion of protection by that country. If it were otherwise, the anomalous situation would exist that the international community would be under an obligation to provide protection outside the borders of the country of nationality even though real protection could be found within those borders.”[26]
[26] Randhawa v Minister for Immigration (supra at 440-441)
The Refugees Convention does not specifically deal with the issue of a person who may be safe in one region of his/her country of origin but under threat of persecution in another region due to say, a state of civil war or the preponderance of one ethnic group in one part of the country but not in another or some other reason. Accordingly, the relocation principle is not an explicit product of the Convention.
In these circumstances, the principle has been construed as arising from the causative requirements of the Convention itself, namely that it applies when a person has a well founded fear of persecution and is outside the country of his former habitual residence.
Lord Bingham of Cornhill said as follows in Januzi v Secretary for State of Home Department:
"The [Convention] does not expressly address the situation at issue in these appeals where, within the country of his nationality, a person has a well-founded fear of persecution at place A, where he lived, but not at place B, where (it is said) he could reasonably be expected to relocate. But the situation may fairly be said to be covered by the causative condition to which reference has been made: for if a person is outside the country of his nationality because he has chosen to leave that country and seek asylum in a foreign country, rather than move to a place of relocation within his own country where he could have no well-founded fear of persecution, where the protection of his country would be available to him and where he could reasonably be expected to relocate, it can properly be said that he is not outside the country of his nationality owing to a well-founded fear of being persecuted for a Convention reason."[27]
[27] Januzi v Secretary for State of Home Departmentfor Home Department [2006] 2AC426 at 440
This passage was approved by the majority of the High Court in SZATV v Minister for Immigration and Citizenship.[28] Accordingly, it is clear that the principle of internal relocation is a part of municipal Australian refugee law.
[28] See SZATV v Minister for Immigration and Citizenship& Anor (2007) 2333 CLR 18 at 25-26 per Gummow, Hayne & Crennan JJ
In SZATV, the High Court determined that the failure of a refugee’s country of origin to provide him or her with the prerequisite degree of protection within that country referred to a failure “to safeguard the fundamental rights and freedoms of its nationals.”[29] Accordingly, such a failure is to be interpreted in a broad sense.
[29] Ibid at page 26
In Minister for Immigration & Multicultural Affairs v Khawar[30] the High Court indicated that the satisfaction of the definition of refugee provided by the refugee’s convention depended on the satisfaction of two conditions – firstly, the person seeking refugee status was outside the country of his nationality; secondly this was as a result of a fear of persecution, which was well founded.
[30] See Minister for Immigration & Multicultural Affairs v Khawar (2002) 210 CLR 1 at 21 per McHugh & Gummow JJ
In this second context, it has been held that the use of the expression “well founded” engenders both a subjective and objective test. That is the claimant personally fears for his safety and such fear is objectively reasonable.
The same considerations have been taken to apply to circumstances where a person seeking refugee status, whilst outside his country of nationality, is able to avail himself of protection in another part of his country of origin.
Thus a decision maker must give consideration to the possibility of a person seeking refugee status relocating within his country of origin, if such relocation is reasonable, in the sense of it being a practicable response to his subjective fear of persecution.
In SZATV v Minister for Immigration and Citizenship the High Court (Gummow, Hayne & Crennan JJ) said as follows:
“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.”[31]
[31] See SZATV (supra) at page 27
Randhawa was a case which predated SZATV. In that case, Black CJ said as follows in respect of the degree of inquiry a decision maker should undertake in order to determine whether it was reasonable for a person seeking refugee status to relocate within his country of nationality:
“Once the question of relocation had been raised for the delegate's consideration she was of course obliged to give that aspect of the matter proper consideration. However, I do not consider that she was obliged to do this with the specificity urged by counsel for the appellant. I agree that it would ordinarily be quite wrong for a decision-maker faced with a relocation possibility to take the general approach that there must be a safe haven somewhere without giving the issue more specific attention, but the extent of the decision-maker's task will be largely determined by the case sought to be made out by an applicant.”[32]
[32] See Randhawa (supra) at page 443
Plaintiff M13-2011 v Minster for Immigration & Citizenship[33] was a decision arising from the High Court’s original jurisdiction, which was determined by a single Justice of the Court. The case post-dated SZATV. The applicant was a female of Malaysian nationality, who was a Hindu and Tamil. She had become pregnant by a Muslim man, whilst unmarried.
[33] See Plaintiff M13-2011 v Minster for Immigration & Citizenship [2011] HCA 23
It had been accepted by the primary decision maker that the applicant’s personal circumstances rendered her liable to persecution by elements of her local community, as a result of her personal circumstances – being an unmarried mother, who had changed her faith. It was also found that there was a real chance of her being persecuted, as a consequence of her religion, if she returned to Malaysia.
However, although there was no evidence available to the primary decision maker, as to where in Malaysia the applicant had resided before leaving the country, the decision maker considered that she would be able to relocate somewhere else, within Malaysia, away from her previous aggressors.
Hayne J found this reasoning to be erroneous. He said as follows:
“When the delegate's reasons are read as a whole, it is evident that the particular circumstances of the plaintiff were not considered by the delegate in forming the opinion that she could relocate to avoid the risk of persecution. So much follows from the delegate not knowing from where the plaintiff would have to relocate. The particular circumstances of the plaintiff not having been considered, the delegate did not correctly identify a question that had to be answered in determining whether there was a real risk of the plaintiff suffering persecution on account of her religious beliefs if she were to return to Malaysia. By not correctly identifying the relevant question, the delegate made a jurisdictional error.”[34]
[34] Ibid at [22]
Submissions
The applicant accepts that the relocation principle has been imported into the test for refugee status in Australia. It is also conceded that the test remains to be applied within the specific criteria set out in the refugee convention itself. In this context, counsel for the applicant Mr Hanna has some criticisms of the reasoning of Lord Bingham in Januzi and the majority view in SZATV.
Mr Hanna describes the reasoning as “circuitous”, being based on a finding that there is a well founded fear in one part of the country but, after this threshold finding has been made, the same fear is not well founded at another location in the same country. Mr Hanna expressed his view as follows:
“In my submission, which may be rather bold because it is not one expressed by the majority in SZATV, that analysis of protection will need to be revisited. With great respect to the High Court, there is an illogicality about assessing a refugee applicant pursuant to the text of the Convention for whether or not they have a well founded fear for a Convention reason, and then saying that there is no such fear because there is an alternative place to reside. If that fear is well founded for a convention reason, and that is a finding of fact, as it is in [the applicant’s] case, then that fear can’t be taken away, in my submission. That is a footing that is established in a claim for refugee status.
But this is not to do away with the internal relocation principle. The way I have put it in the outline of submissions filed on behalf of the applicant, is that the test would more logically go in this way: whether the applicant’s fear of the specific persecutor was well founded in the circumstances in which the applicant found himself or herself before fleeing; whether the protection lacking in the circumstances of the persecution is in fact available elsewhere in the applicant’s country of origin; and then to ask whether the applicant can, or because of the applicant’s fear, is willing and able to avail himself or herself of such protection.”[35]
[35] See transcript of proceedings at page 7-8
In Mr Hanna’s exposition, the first two limbs of his well foundedness test are objective whilst the third is purely subjective, which Mr Hanna summarised in the following pithy phrase as being concerned with whether any “applicant can sink or swim at another location”.
As such, it was necessary for any decision maker concerned to determine how an applicant would get to a potential safe haven and how he or she would be able to function there.
Mr Hanna places significant emphasis on the failure of the IMR to assess whether it was feasible for the applicant, in the current matter, to travel from Kandahar to Kabul to access the purportedly safe haven available there for Hazaras. In Mr Hanna’s submission the reviewer has jumped to the question of whether it is reasonably practicable for the claimant to relocate away from Kandahar, without any proper consideration of the necessary incidental steps as to how he will reach Kabul.
In particular, it is submitted that the IMR did not approach the issue of what was reasonable, so far as relocation for the applicant was concerned, with sufficient specificity. In particular, no proper consideration was given to how the applicant would sustain himself in Kabul in both an economic and personal sense. Further no consideration was given as to the ongoing sustainability of the currently stable circumstances for Hazaras within Kabul.
Mr Hanna summarised his submissions as follows:
“To put it another way, there was jurisdictional error because the relevant material was overlooked and not considered, and I am referring particularly to the issue of travel and the feasibility of travel from Kandahar to Kabul; the sustainability of the applicant in Kabul.
I say there wasn’t an exploration of that beyond noting the livelihood in Quetta of the applicant AZABO. There was no consideration of AZABOs family obligations. There was no consideration of the future safety of Hazara in Kabul. So one doesn’t really know whether the day after tomorrow it would be a safe haven to which one could reasonably relocate in AZABOs circumstances. Thus, there was jurisdictional error. Thus, there is merit to the case and time ought to be extended, in my submission.”[36]
[36] See transcript of proceedings at page 14
Counsel for the respondent, Mr d’Assumpcao rejected any criticisms of the ratio arising in SZATV. In addition, he reminded me that I am bound by the decision of the majority in the case.
Mr d’Assumpcao submitted that the majority view in SZATV was clear. In a claim for protection the applicant concerned must have both a subjective and objective fear of persecution. Accordingly, if there was no objective fear of persecution in an area of potential relocation, any claim for refugee status must fail, if this objective element is absent.
In these circumstances, the respondent submits that the IMR applied the correct test stipulated by the High Court in SZATV, as to whether it was reasonable, in the sense of practicable, for the applicant to relocate to Kabul. In particular, the IMR posed the correct question for his consideration and so did not fall into any jurisdictional error.
Mr d’Assumpcao relies on the comments of Black CJ in Randhawa and asserts that the IMR undertook the task of considering the issue of internal relocation with a reasonable level of specificity, given the matters raised by the applicant himself. As such, it was not necessary for him to “go the extra step”, as submitted by counsel for the applicant, in respect of issues such as travel between Kandahar and Kabul and so on and so forth.
Conclusions
In my view, the IMR, after determining that the applicant was subject to a real chance of suffering harm, for a convention reason, if he returned to Kandahar, correctly posed for himself the next relevant consideration namely whether internal relocation to another place within Afghanistan was open to the applicant. In so doing he said as follows:
“An assessment of the reasonableness of re-location will depend upon the individual circumstances in each case.”
This was the test enunciated by the majority in SZATV. In my view, this is the test which I am bound to consider in assessing whether the IMR fell into jurisdictional error.
In these circumstances, I must consider whether the IMR identified a wrong issue, asked a wrong question, ignored relevant material or relied on irrelevant material, to such a degree that it constitutes a jurisdictional error.
In Randhawa Black CJ indicated that a decision makers task, in respect of the reasonableness and practicality of any potential relocation must be determined by the parameters of the case sought to be made by the applicant concerned.
In this particular case, the applicant concerned had lived in Quetta, a large city in Pakistan for an extended period of time. As such, the IMR concluded that he had demonstrated a capacity to support himself in a large urban setting, such as Kabul.
The IMR was also satisfied that there was a significant Hazara population in Kabul and it was thus feasible for the applicant to live there, without coming to harm for a convention reason in that location.
The IMR had extensive evidence before him, in the form of the Department of Foreign Affairs and Trade Information, regarding the situation for Hazaras in Kabul. He also interviewed the applicant about his views regarding the viability of his living in Kabul. As such, the applicant was given the opportunity to put any specific matters to him.
With the benefit of hindsight, it may be the case that the applicant could have put more concerns to the IMR. However, the IMR is limited to the material put before him and it would not, in my view, be reasonable for him to anticipate concerns not specifically raised, such as the hypothetical issue of travel between Kandahar and Kabul.
In these circumstances, in my view, the IMR was entitled to conclude that, given his experience in Quetta, the applicant could, in a practical sense, integrate himself into the Hazara community in Kabul, particularly given the finding about the actual size of the Hazara population in Kabul.
The IMR was aware of violence occurring in Kabul, but found that this was largely directed against foreign and public figures and was not of such intensity to impact upon the day to day security of an individual, who had moved to its environs because of a perceived level of threat in another location.
The IMR was aware of Professor Maley’s view that it would be imprudent to assume, given the historical background, that the situation in respect of Hazaras generally, within Afghanistan, might not deteriorate in future.
The IMR also had before him the applicant’s assertion that no place in Afghanistan was likely to provide him with a safe haven. However, in his role as the independent merits reviewer, the respondent was entitled to give the weight he deemed appropriate to both Professor Maley’s opinion and the applicant’s assertion.
In SZATV, the majority of the High Court in assessing what was practicable vis a vis an internal relocation spoke of the impact upon a person so relocating within his or her country of origin. In my view, in this particular case, the evidence considered by the IMR and the questions posed by him were directed to this issue of personal impact on the applicant concerned. In so doing, in my view, the IMR determined this matter within the parameters raised by the applicant in his case.
In general terms, the IMR was aware of potential difficulties arising for Hazaras travelling internally within Afghanistan. The applicant himself did not raise these specific issues. I do not consider that, in the specific circumstances of this case, the IMR’s failure to raise this specific issue with the applicant amounts to a jurisdictional error. I agree with counsel for the respondent’s submission that the issue is hypothetical.
In my view, the situation prevailing in this case is distinguishable from that which existed in Plaintiff M13/211. In the latter case, the decision maker concerned was unable to make any assessment of the particular circumstances of the claimant concerned because no specific place of relocation had been considered.
In the current case, I am satisfied that the IMR did pose himself the correct question and had sufficient evidence available to him to answer it satisfactorily in all the circumstances prevailing. It must follow from this conclusion that the application herein should be dismissed.
It further follows that the applicant should pay the first respondent’s costs, which I assess at $5,850.00.
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.
I certify that the preceding one hundred and twenty-seven (127) paragraphs are a true copy of the reasons for judgment of Brown FM
Date: 27 October 2011
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