AZACB v Minister for Immigration
[2013] FCCA 230
•22 May 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AZACB v MINISTER FOR IMMIGRATION & ANOR | [2013] FCCA 230 |
| Catchwords: MIGRATION – Independent merits review of refugee claims of offshore entry person – Applicant Hazara Shia Afghan – jurisdictional error – reviewer failed to consider properly the “real chance” applicant would suffer persecution in Afghanistan – reviewer failed to accord procedural fairness to applicant by not advising him that he would be regarded as an adult at the time of determination – alleged failure to consider essential integar of claim for protection namely applicant Hazara minor – decision unreasonable, illogical and irrational – no error found – application dismissed. |
| Legislation: Migration Act 1958, s.5 |
| Plaintiff M61/2010E v Commonwealth of Australia (2010) 272 ALR 14 Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 Chan v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379 Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559 WAAD v Minister for Immigration & Multicultural Affairs [2002] FCAFC 399 NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 Re Minister for Immigration & Multicultural Affairs & Anor; Ex Parte Miah (2000) 206 CLR 57 Commissioner for Australian Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 Kioa v West (1985) 159 CLR 550 Re Minister for Immigration & Multicultural Affairs Ex parte Lam (2003) 214 CLR 1 Abebe v The Commonwealth (1999) 197 CLR 510 Craig v South Australia (1995) 184 CLR 163 Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 78 ALJR 992 Htun v Minister for Immigration & Multicultural Affairs (2001) 194 ALR 244 Dranichnikov v Minister for Immigration and Indigenous Affairs [2003] ALJR 1088 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 |
| Applicant: | AZACB |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | INDEPENDENT MERITS REVIEWER |
| File Number: | ADG 103 of 2012 |
| Judgment of: | Judge Brown |
| Hearing date: | 28 March 2013 |
| Date of Last Submission: | 28 March 2013 |
| Delivered at: | Adelaide |
| Delivered on: | 22 May 2013 |
REPRESENTATION
| Counsel for the Applicant: | Ms White |
| Solicitors for the Applicant: | Mackie Crompton |
| Counsel for the Respondent: | Mr Smith |
| Solicitors for the First Respondent: | Sparke Helmore |
| Counsel for the Second Respondent: | Mr Smith |
| Solicitors for the Second Respondent: | Sparke Helmore |
ORDERS
The time for making the application provided by section 477(1) of the Migration Act 1958 (Cth) is extended up to and including 18 May 2012.
The time for the applicant to file any amended application is extended to 28 March 2013.
Application dismissed.
The applicant should pay the respondent’s costs fixed in the sum of six thousand four hundred and twenty-one dollars ($6,421.00).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT ADELAIDE |
ADG 103 of 2012
| AZACB |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| INDEPENDENT MERITS REVIEWER |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is an off shore entry person,[1] who arrived at Christmas Island, by boat, on 14 October 2010. He is an Afghan by nationality; of Hazari ethnicity; and a Shia Muslim.
[1] See Migration Act 1958 (Cth) at section 5
The applicant was born in the Dehqabel district of Kabul, the capital of Afghanistan. There is uncertainty about his precise date of birth. In his initial entry record, compiled by an officer from the Department of Immigration & Citizenship, his date of birth was recorded as “17 years – 1993”.[2]
[2] See case book [hereinafter CB] at 2
The applicant claims that he left Afghanistan because he fears that he would be killed by members of the Taliban because of his religion and ethnicity. In addition, he claims that the Taliban target young Hazara males.
The applicant also claims that, if he returns to Afghanistan from a country such as Australia, where he has unsuccessfully sought asylum, he will be regarded as a supporter of the West and an infidel, as well as a potential spy and these characterisations will also expose him to serious attack, at the hands of the Taliban.
As a consequence of these various factors, the applicant seeks protection, for himself, from the Australian authorities and claims that he cannot return to Afghanistan because of a well founded fear of persecution in that country.
In summary, the applicant claims to be entitled to the protection of Australia because he is a refugee as defined by article 1A(2) of the Refugees Convention which defines a “refugee” as any 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.”
Australia is a signatory to the Refugees Convention which, subject to some provisions in the Migration Act 1958 (hereinafter referred to as “the Act”), is part of the municipal law of this country.
The second respondent conducted an independent merits review (hereinafter referred to as the “IMR”) of the applicant’s claims for protection, delivering his decision on 2 September 2011. The IMR found that the applicant would not suffer persecution in Kabul, on the basis that he was a Hazara and a Shia.
In addition, he found that the applicant would not be denied the opportunity to attend school or obtain employment in Kabul because of religion or ethnicity. The IMR was not satisfied that failed asylum seekers were targeted by the Taliban or others in Afghanistan, on their return from a western country. Finally, the IMR was not satisfied that the applicant had a well-founded fear of persecution, because of his status as a Hazara male minor, because he was not in fact, a minor at the relevant time and even if he was, such minors are not subject to persecution.
In effect, the second respondent determined that Australia was not bound to offer the applicant protection pursuant to its obligations under the Refugee’s Convention. He made a recommendation to this effect to the first respondent.
The applicant seeks judicial review of this decision and contends that the second respondent fell into error in his conduct of the IMR to such an extent that he exceeded the jurisdiction conferred upon him.
As a consequence of this error, it is submitted that the court should declare that the IMR’s recommendation, to the first respondent, was not made in accordance with the law and an injunction should therefore lie restraining the Minister from relying on the recommendation in any way.
The framework leading to the IMR
Christmas Island is excised from the Australian migration zone. As such, asylum seekers who arrive there by boat are categorised as “offshore entry persons”. Such persons are excluded from applying for protection visas, via orthodox channels, to enable them to remain in Australia, pursuant to the provision of the Refugee Convention.
However, pursuant to section 46A(2) of the Act, the first respondent is granted a discretion to grant an offshore entry person such a visa if the Minister “thinks that it is in the public interest to do so …”.
As a result of this legislative discretion, invested in the Minister, an administrative protocol was devised by the Department for Immigration & Citizenship (hereinafter referred to as “the Department”), 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, if necessary, there would be an IMR of each such Refugee Status Assessment. The intention being that there would be an independent and arm’s length review of any decision made by Departmental officers, which was contrary to any applicant concerned.
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 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.[3] The High Court concluded that those making inquiries, on which the Minister would act, were bound to act according to law and afford procedural fairness to the persons potentially affected by the Minister’s decisions.
[3] See Plaintiff M61/2010E v Commonwealth of Australia (2010) 272 ALR 14
In addition, in Plaintiff M61/2010E, the High Court held that decisions in respect of applications for protection visas, arising at the IMR stage, were subject to judicial review in the original jurisdiction of the High Court as a consequence of paragraph 75(v) of the Constitution. This provision grants the High Court original jurisdiction in all matters in which writs of mandamus or prohibition or an injunction are sought against an officer of the Commonwealth.
The applicant commenced these proceedings on 18 May 2012. Ostensibly, he prepared his own application. He sought a declaration that the recommendation of the IMR was not made in accordance with law. This application was originally made returnable before the court on 21 June 2012.
On 3 August 2012, the court ordered that the applicant file and serve any amended application, with full particulars of the grounds relied upon, and any further affidavits upon which it was intended to rely, on or before 24 August 2012. It is common ground that the applicant did not comply with this order.
On 11 October 2012, the applicant’s solicitors filed a notice of acting. Thereafter, on 26 February 2013, these solicitors filed an amended application on the applicant’s behalf. In addition to a declaration that the IMR was not made in accordance with law, the amended application also sought an injunction restraining the Minister for Immigration & Citizenship from relying on the recommendation contained in the IMR in any way.
The Federal Magistrates Court’s (subsequently the Federal Circuit Court) jurisdiction to deal with applications for judicial review, in migration matters, is founded on section 476 of the Act. Pursuant to this section, the court has the same original jurisdiction, in relation to migration decisions, as the High Court has under paragraph 75(v) of the Constitution.
However, the Act prescribes a timeframe for the making of such applications. Pursuant to section 477, the time prescribed for such applications is within 35 days of the making of the decision, which is sought to be challenged.
Accordingly, the application herein, being commenced on 18 May 2012, is prima facie out of time. Pursuant to section 477(2) of the Act, the Federal Magistrates Court may extend the time period, if it is satisfied it is necessary, in the interests of the administration of justice to do so.
The applicant seeks such an extension of time. This application is opposed by the first respondent. However, there is no issue between the relevant parties that the jurisdiction of this court has not been otherwise enlivened pursuant to the provisions of section 476.
The applicant advances three grounds on which the IMR fell into jurisdictional error in assessing his claim to be accorded refugee status in Australia. These grounds can be summarised as follows:
·The IMR failed to consider the appropriate issues in determining whether or not the applicant faced “a real chance” that the applicant would suffer persecution, in future, in the event he returned to Afghanistan;
·The IMR failed to accord procedural fairness to the applicant and so breached the rules of natural justice by failing to inform him that he (the reviewer) intended to regard the applicant as an adult, rather than a minor, as at the date of the relevant decision (2 September 2011);
·The IMR failed to take into account an essential integer of his claim for refugee status, namely that he belonged to a class of persons described as Hazara male minors.
·Rather, the IMR concluded, either unreasonably, illogically and irrationally, in response to the evidence available to it, that the applicant was eighteen years of age at the relevant time and therefore an adult.
An error which goes to the jurisdiction of an administrative body was described in these terms by the High Court in Minister for Immigration & Multicultural Affairs v Yusuf:[4]
“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.”
[4] See Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323
This hearing is directed towards the legality of the IMR’s decision not its merits. It is the role of the decision maker alone to make the necessary findings of fact on which his decision is predicated, from the evidence which was properly available to him. It is not the function of this court to substitute its own findings of fact in respect of that evidence.[5]
The evidence
[5] See Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272
a) The RSA
On entry to Australia, at Christmas Island, the applicant’s date of birth was recorded as “17 years – 1993”. In the same interview, he claimed that “because [he] was under age, [he] was harassed” by the Taliban.[6]
[6] See CB at 10
In a statutory declaration, completed on 6 October 2010, filed in support of his refugee status assessment, the applicant stated as follows:
“I do not know my exact date of birth but I know that I am seventeen years old now. I therefore choose my date of birth to be 1 January 1993.
… One day during the Taliban regime my father was travelling again from Mazar Sharif to Kabul. He never returned home. … We have never found out what happened to my father or found his body. But during this time the Taliban were very powerful and we are sure that they killed my father.
I believe that the Taliban killed my father because they hate Hazaras and Shias.
… Being a young Hazaras in Kabul was very difficult. There is no safety in Kabul. I was not able to go to school because it was not safe. I heard of schools and of civilians being attacked by the Taliban. These attacks often target Hazara Shias and I was afraid that one day it might hit me.
For us Hazaras it is extremely difficult to find work in Afghanistan. Pashtuns don’t like employing Hazaras and for many Hazaras the only way to make a living is to work as street vendors. I applied once in a grocery store but the shop owner told me straight away that he would not employ Hazaras. … Street vendors are often harassed and beaten up by the police and I did not want to do this kind of work.
…
If I was forced to go back I fear that I would be killed by the Taliban. … The Taliban killed my father because he was a Hazara and Shia and I fear that the same thing could happen to me. … I fear that theTaliban would find out that I have been to Australia to seek asylum if I was forced to return.”[7]
[7] See CB at 24-25
It is clear from this statement that the applicant characterised himself as a “young Hazara”. He detailed his perception of the difficulties facing Hazaras in Afghanistan generally and in Kabul specifically. He raised a personal fear of the Taliban because of his background, including how he would be regarded by them, if he returned to his place of origin from Australia.
In the proforma application for the RSA, the applicant, in response to a question as to why he did not hold relevant identity documents, stated as follows:
“I never held a Taskera.[8] The people smuggler took it away in Malaysia.”[9]
[8] A Taskera is a form of Afghani identity document
[9] See CB at 29
In the request for RSA assessment form, completed by the applicant, with the assistance of a migration agent, the applicant’s date of birth is entered as 1 January 1993.[10]
[10] See CB at 26 and 45
The RSA did not accept that the applicant would be at risk of persecution in either Kabul or Afghanistan. It was accepted that there was social discrimination against Hazaras, in Afghanistan, but this did not amount to systemic persecution, as required by the relevant definition in the Refugee Convention.
In addition, it was not accepted that the applicant would be targeted, on his return to Afghanistan, due to his brief period of residence in the West and his resulting request for asylum.
Accordingly, the RSA found that the applicant did not meet the definition of refugee contained in the Refugee’s Convention.
In his request for an independent merits review, the applicant again stated his date of birth as 1 January 1993. In addition, in a brief statutory declaration, completed before a Department of Immigration & Citizenship official, at Darwin Airport Lodge, on 2 May 2011, the applicant stated as follows:
“I declare that I turned seventeen in January 2011 and my date of birth is in January 1994.”[11]
[11] See CB at 79
In a written submission, compiled on his behalf by his migration agent and dated 7 June 2011, the applicant is described as an eighteen year old Shia Muslin Hazara man, born in Dehqabel District, Kabul, Afghanistan.[12]
[12] See CB at 102
In April of 2011, the applicant obtained a Taskera for himself from sources in Afghanistan. It was translated and provided to the IMR in July of 2012. Under the heading “Date of Birth” is entered “fifteen years old in 2008.”[13]
[13] See CB at 98
The applicant was interviewed by the IMR on 27 July 2010. Prior to this interview, the applicant provided a further statement dated 24 July 2011. In this statement, he described himself as an eighteen year old Afghani Hazara, who was a Shia Muslim.
In the statement, he provided further claims regarding ill treatment received by him and members of his family, at the hands of the Taliban. In particular, he stated that he and his mother had been attacked by a group of Taliban, in 2006, in Kabul. He stated that he was twelve years old at the time. His teeth had been broken in the attack and his mother’s ear drums damaged.
He also stated that he had been threatened by the Taliban, in the year prior to his departure from Afghanistan. He also stated that his mother had been beaten on other occasions, but he did not have full details of these assaults because his mother had not fully disclosed them to him.
Following the IMR interview, through the auspices of his migration agent, the applicant took the opportunity to make a further submission to the reviewer and, in particular, address concerns raised during the interview process. In this submission, the applicant supplied 31 December 1993, as his date of birth. Accordingly, he asserted he was seventeen years of age at the time of the IMR interviews.
In this submission, it was stated as follows:
“Since the applicant arrived on Christmas Island in October 2010 throughout all his interviews that he does not know his exact date of birth but does know that he is currently seventeen years old. This is very common in the Afghan community, where exact dates of births have no importance. If a client is unaware of their exact date of birth but knows their age, it is practice to record it either as the 1st of January of the birth year or – if it is a minor – at the 31st December of the birth year.
Nevertheless the Immigration Officer conducting the entry interview, recorded the applicant’s date of birth as 1st January 1993, despite the applicant stating that he was only seventeen years old. Unfortunately I did not pick up this mistake when I completed the applicant’s RSA forms in December 2010. It should have been picked up and corrected at some point of the process but unfortunately it was not.
According to DIAC records, the applicant turned 18 on the 1st January. He was therefore approached by his case manager and informed that he will have to move to another facility since he had turned 18. Again, the applicant maintained that he was only 17 years old. In an attempt to correct the above mentioned mistake the applicant agreed to sign a statutory declaration. He did not really understand what a statutory declaration is, he just tried to solve the issue around his age to the best of his abilities. The applicant never said that his date of birth is in January 1993 but always maintained that he does not know his exact date of birth.
We therefore submit that the confusion around the applicant’s age is no fault of his own. He consistently stated from his arrival in October 2010 up to this date that he does not know his exact date of birth but knows from his mother that he is seventeen years old. According to current practice his date of birth should therefore be changed and recorded as the 31st December 1993. For the purpose of this review the applicant should be assessed as a minor.
The applicant did not know that he had a Taskera. As mentioned above, dates of birth are of no importance in Afghan culture. When the issue about his date of birth arose earlier this year, the applicant rang a neighbour in Kabul, explained him the situation and asked him to check for any documents that would give the applicant’s age.
The reason why he approached his neighbour and not his mother is that his neighbour had the opportunity to email him documents as attachments. He did not ask his friend to obtain a new Taskera for him. The provided Taskera was apparently obtained some years back without the applicant’s knowledge.”[14]
[14] See CB 143-144
The IMR
The reviewer summarised the applicant’s claims for asylum as being based on the following events befalling him and his family:
·Persecution by the Taliban/Pashtuns because of his Hazara ethnicity and Shia religion;
·The Taliban had killed his father because of their hatred of Hazaras and Shias and he himself had been personally targeted and attacked by the Taliban in Kabul in 2009/2010;
·He had been denied the right to pursue educational and employment opportunities by the Taliban/Pashtuns;
·If he returned to Afghanistan, he would be viewed as a supporter of the Karzi government, because he had sought asylum in a western country. As such, he would suffer persecution, in Afghanistan, because of his membership of a particular social group, namely failed asylum seekers returned from the West;
·He had been persecuted as a result of his membership of a particular social group, namely Hazara male/minors.
The IMR summarised the various dates of birth of the applicant, which were available in the case and canvassed their provenance in his decision. He concluded that the applicant’s age was potentially relevant to his claim of persecution on the basis he was a Hazara minor. These dates can be summarised as follows:
·Entry interview (November 2010) – seventeen;
·Information initially provided by migration agent – 1.1.93;
·More recent information provided by migration agent (June 2011) – now eighteen;
·Taskera – fifteen years old in September 2008;
·Statutory declaration (May 2011) – born January 1994 and turned seventeen January 2011; and
·Submission to IMR – 31 December 1993.
In interview with the reviewer, the applicant maintained that he was still seventeen years of age. He was described as being vague, by the IMR, about the statutory declaration, which he indicated had been compiled “because they told him to go to the other camp”.
The reviewer accepted that a birth date of 1 January 1993 might be “arbitrary”. However, he further reasoned as follows:
“Given that the claimant stated in October and November 2010 that he was then 17years of age, the birth year of 1994 later suggested is clearly untenable. The suggested notional date of birth of 31 December 1993, whether or not it is DIAC’s normal practice, is patently also a nonsense if the claimant was already 17 years old in October and November 2010 as he has stated and was therefore clearly born prior to October 1993. If the claimant’s uncertainty about his date or year of birth is taken at face value, the only basis for his declaration on arrival that he was then 17 years of old is that his mother had told him so – although it is not clear when she did so other than that it was prior to his arrival at Christmas Island in October 2010. Nor has the claimant given any indication as to when he thinks he might cease to be 17 years old.
On the available evidence, the reviewer is not satisfied that the claimant is still 17 years old. The only objective evidence as to the claimant’s date of birth is in the (pre-existing) taskera he has submitted which states that he was already 15 years old at 1 September 2008 and which means therefore that his date of birth must necessarily be earlier than 1 September 1993. This is consistent with the claimant’s original statements. The reviewer is therefore satisfied that as at the date of this report, the claimant is not less than 18 years old.”[15]
[15] See CB 98-99 [at 174]
On the basis of generic country information, the IMR was not satisfied that the applicant would face persecution, on the basis of his Hazara ethnicity and Shia religion per se.[16] In those circumstances, he turned to consider the specific claims of the applicant and his individual circumstances to see whether he satisfied the necessary definition of refugee on an idiosyncratic basis.
[16] See CB 177 [at 115]
The reviewer did not find that the evidence submitted supported the applicant’s claim that his father had been targeted by the Taliban. In addition, he found the applicant’s accounts of the more recent attacks on him personally to be unsatisfactory and implausible. In those circumstances, it was found as follows:
“The reviewer is satisfied that these incidents did not occur as stated and, at best, the claimant has embellished or attached greater significance to an incident or incidents of harassment or of non-Convention related crime or violence, occurring in different circumstances, (highly embellished a relatively minor incident of harassment occurring in different circumstances). The reviewer finds that the claimant was not targeted and attacked or threatened by the Taliban in Kabul. [17]
[17] See CB 124 [at 179]
The reviewer was not satisfied that the applicant would be denied educational and employment opportunities, specifically in Kabul, on account of his ethnicity. In this regard, it was noted that there are approximately one million Hazaras in Kabul.
Again, on the basis of country information, the IMR was satisfied that there was no authorative evidence to indicate that either the police or nomadic Kuchis violently targeted Hazaras in Kabul.
These factors led the reviewer to conclude that the applicant did not have a well-founded fear of persecution, in the event of his return to Afghanistan, because of his Hazara ethnicity or Shia religion.
It was also implicit in the reasons for decision that the reviewer was alive to claims by the applicant that his risk of persecution turned on his membership of a particular social group, namely Hazara male minors. In this context, the reviewer found as follows:
“The claimant does not have an objective well-founded fear of persecution as a minor on return to Afghanistan as he is not a minor.
In any event, the material canvassed in the agent’s submission in relation to difficulties and chances of harm for children in Afghanistan does not satisfy the reviewer that minors in Afghanistan are persecuted by reason of their membership of the particular social group of minors or Hazara minors or male minors or Hazara male minors.”[18]
[18] See CB 181 [at 139] – [140]
As previously indicated, the applicant criticises the basis on which the reviewer made the specific finding of fact that he was not a minor, categorising it as being unreasonable, illogical or irrational to such an extent as to cede jurisdiction.
Finally, the IMR was not satisfied that failed asylum seekers were being targeted by the Taliban, for having applied for refugee status in a western country, upon their return to Afghanistan. This conclusion was reached after the reviewer had analysed country information available to him on this specific topic.
These matters lead the IMR to conclude that the claims advanced by the applicant, either separately or cumulatively, did not meet the criterion necessary for the applicant to be granted protection, as a refugee, in Australia.
Ground One
The first ground of the application is as follows:
“The Second Respondent erred in law in failing to observe procedures that were required by law to be observed in connection with the making of the decision namely, failing to make an assessment of the risk of persecution to the Applicant in the reasonably foreseeable future.
Particulars
The Second Respondent failed to make an assessment of the risks of persecution to the applicant in the reasonably foreseeable future:
i. by only relying on historical material concerning risk of persecution on grounds of ethnicity and religion;
ii. when considering the situation in Kabul;
iii. when concluding ‘failed asylum seekers and returnees from a Western country are for that reason suspected or targeted by the Taliban or others’ (emphasis added); when concluding applicant would not face a real chance of persecution in relation to his absence overseas or return to Afghanistan from the West or having sought asylum in Australia’ (emphasis added); and
iv. when concluding Applicant does not meet the criterion for protection set out in s36(2) of the Migration Act 1958’ (emphasis added).”
The fear an applicant has that he will be subjected to persecution, in his country of origin, must be “well-founded” to accord refugee status on that person.
Accordingly, any assessment of refugee status must include some assessment of the probability that harm will come to the person, who professes to be in fear, on return to the country from which he has fled. Necessarily, this assessment must be prospective in nature.
In this regard, the criticisms of the applicant centre on his contention that the IMR relied unduly on historical material, arising from country information available to him, as well as what had happened to the applicant in the past, rather than what might happen to him in the immediate future and so the reviewer had misconstrued “the real chance” question.
The expression “real chance” derives from Chan v Minister for Immigration & Ethnic Affairs. In the case, Mason CJ said as follows:
“… I prefer the expression ‘a real chance’ because it clearly conveys the notion of a substantial, as distinct from a remote chance, of persecution occurring …”[19]
[19] See Chan v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379 at 389
In effect, a fear is “well-founded” when there is a real substantial basis for it. In Chan, it was determined that a well-founded fear of persecution has both a subjective and objective element.
An applicant for refugee protection must personally fear persecution but his level of fear must be based on an objective assessment of the circumstances applicable. In this case, the applicant submits that the IMR has fallen into error in his assessment of the circumstances surrounding the applicant.
In effect, it is submitted that by focusing on making findings about the nature of the persecution, said to have confronted the applicant in the past, the IMR failed to make an assessment of the risk to the applicant of persecution befalling him in the future and thereby asked himself the wrong question.
Essentially, the question for the IMR involved more than the resolution of whether the applicant had or had not been subjected to persecution, in the past, in Afghanistan. It included a prospective element, which had not been properly considered.
In this regard, Ms White, counsel for the applicant relied on Minister for Immigration & Ethnic Affairs v Wu Shan Liang, where the High Court (Brennan CJ, Toohey, McHugh & Gummow JJ) said as follows:
“The chance of persecution is not a fact to be inferred solely from facts that are found to have existed; the very uncertainty of what has happened in other cases is itself material to the assessment of the chance of persecution in the instant case. As a matter of ordinary experience, it is fallacious to assume that the weight accorded to information about past facts or the opinion formed about the probability of a fact having occurred is the sole determinant of the chance of something happening in the future; the possibility that a different weight should have been attributed to pieces of conflicting information or the possibility that the future will not conform to what has previously occurred affects the assessment of the chance of the occurrence of a future event.”[20]
[20] See Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 281
Counsel for the Minister, Mr Smith submitted that in determining whether any particular applicant’s fear of persecution is well-founded, it is necessary for the reviewer concerned to assess the likelihood of persecution.
Such a process necessarily requires a decision maker to engage in a degree of speculation about future events, which must, as a consequence, involve the making of findings about what had or had not happened to the applicant in the past.
In support of this submission, Mr Smith relies on the following passage from Minister for Immigration & Ethnic Affairs v Guo, where the High Court held as follows:
“Determining whether there is a real chance that something will occur requires an estimation of the likelihood that one or more events will give rise to the occurrence of that thing. In many, if not most cases, determining what is likely to occur in the future will require findings as to what has occurred in the past because what has occurred in the past is likely to be the most reliable guide as to what will happen in the future. It is therefore ordinarily an integral part of the process of making a determination concerning the chance of something occurring in the future that conclusions are formed concerning past events.”[21]
[21] Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559 at 575
In Guo, the High Court indicated that a fear of persecution is not well-founded, if it is merely assumed or if it is mere speculation. It reaffirmed Chan and indicated that for a fear to be well-founded, it must have a real and substantial basis, which by necessary implication, is factually based.
In the vast majority of cases, it would appear axiomatic that the fact that an applicant has been subjected to persecution, for a convention reason, in the past, renders the possibility of present or future persecution more likely.
Accordingly, Mr Smith contends that the findings of the IMR, in which he rejected the applicant’s claims of past persecution in Afghanistan, were relevant to the reviewer’s application of the real chance test.
I agree. The task for the IMR, in assessing in whether the applicant would be subject to a real chance of persecution, upon his return to Afghanistan, was to consider the possibility that past events had occurred as claimed and then to assess the risk that the applicant might suffer persecution in future, having regard to such a possibility. Essentially, the IMR had to have regard to both past occurrences and possible future events.[22]
[22] See WAAD v Minister for Immigration & Multicultural Affairs [2002] FCAFC 399 at [38]
In my view, the IMR completed this task appropriately. The reviewer rejected the applicant’s claim that he was specifically and personally targeted in the past, by the Taliban. This was a finding of fact, which in part, rested on the IMR’s assessment of the applicant’s credibility. Such findings of fact fall within the domain of the primary decision maker.
In terms of the possibility of the applicant being subjected to persecution, in future, because of his ethnicity, religion and because he might be deemed to belong to a particular social group, namely failed asylum seekers, the IMR gave significant weight to generic country information relating to Afghanistan. In my view, the reviewer was entitled to have regard to this information and use it in the manner in which he did.
In NAHI v Minister for Immigration & Multicultural & Indigenous Affairs the Full Court of the Federal Court said as follows:
“It is clear from its reasons for decision that the Tribunal did rely on ‘country information’ in making its assessment of the future, and that the conclusion that it reached was open to the Tribunal on the basis of the material it used. Both the choice and the assessment of the weight of such material were matters for the Tribunal. The Court cannot substitute its own view of the material, even if it had a different view from that reached by the Tribunal.”[23]
[23] NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [13] per Gray, Tamberlin & Lander JJ
In my view, the function of the IMR was to assess the applicant’s claims, both as to their inherent credibility and as to their consistency with other information available to him, about circumstances in Afghanistan, so far as Hazara Shias were concerned.
The IMR specifically rejected the applicant’s claim that he had been personally targeted by the Taliban in Kabul. It was also found that the applicant had not been denied an education or employment in Kabul because of his ethnicity. It found any connection between the disappearance of the applicant’s father ten years before and the assertion the Taliban might come looking for the applicant to be “implausible”.[24]
[24] See CB at 178-179 [123] [127]
Given the paucity of information about incidents of past episodes of persecution, affecting the applicant and the IMR’s finding about them, in assessing the probability of the applicant being subject to future episodes of persecution, the reviewer was effectively limited to a consideration of country information. In this case, particularly the UNHCR Eligibility Guidelines for Afghanistan. In this context, the IMR concluded as follows:
“The Guidelines also state that:
UNHCR considers that persons associated with, or perceived as supportive of, the Government and the international community and forces, including Government officials, government-aligned tribal and religious leaders, judges, teachers and workers on reconstruction/development projects, may, depending on the individual circumstances of the case, be at risk on account of their (imputed) political opinion, particularly in areas where armed anti-Government groups are operating or have control.” [emphasis added]
However, the Guidelines do not suggest that Hazaras generally are imputed with such views, although the Taliban has targeted “individuals, including Hazaras, suspected of working for, or being supportive of, the government and international military forces” [emphasis added].
The reviewer is not satisfied that the material consulted provides independent corroboration of claims that the Taliban now specifically targets Hazara Shias on a systematic and discriminatory basis, notwithstanding that individual Hazaras may have been targeted in particular places either individually for other reasons or as part of the general insurgency and the Taliban’s attacks on communications and facilities.”[25]
[25] See CB at 109-111
In my view, given his findings about past events affecting the applicant, there was nothing more for the IMR to consider, regarding the probability of the applicant being persecuted in future.
Accordingly, I am satisfied that the reviewer discharged this function appropriately and proper consideration was given both to what the applicant said had occurred to him in the past and what might reasonably happen to him in the future. For these reasons, I can find no merit in the first ground of appeal.
Ground Two
The second ground of the application is as follows:
“The Second Respondent breached of the rules of natural justice in connection with the making of the decision by failing to meet the requirements of procedural fairness to the Applicant by failing to bring to the attention of the Applicant, the impact of the delay on the ‘objective’ determination as to age and ‘subjective’ determination as to credibility as to age.
Particulars
a. The applicant has consistently indicated he was a minor who did not know his date of birth;
b. During the Independent Merits Review (IMR) hearing with the Second Respondent on 27 July 2011 the Applicant claimed to be 17 years old and a minor;
c. The Second Respondent accepted that the “only objective evidence”, in the form of the Applicant’s Taskera’ of September 1, 2008, indicated the Applicant was 15 years old in 2008”, “which means that his date of birth must necessarily be earlier than 1 September 1993”;
d. In consequence of the above, the Applicant was potentially a minor and 17 years of age at the date of the IMR hearing;
e. The IMR decision was however finalised by the Second Respondent on 2 September 2011. At that time, the Second Respondent concluded, based on the Taskera, the Applicant was not less than 18 years of age.
f. The Second Respondent highlighted the significance of age in respect of the Applicant’s credibility as to age, and claims that the Applicant faced “… a real chance of persecution as a minor and any other implications which may flow from the claimant continuing to be classified as an unaccompanied minor or not” and made adverse findings in respect of these matters;
g. The delay of five weeks approximately between the date of the hearing and date of the IMR decision significantly adversely affected the case of the Applicant;
h. The Applicant was not made aware during the hearing that the Second Respondent would potentially delay the determination of his claims until the Applicant was ‘objectively’ 18 years of age.”
This ground relies on the passage of time between the hearing of the applicant’s claim (27 July 2011), which included an interview between the reviewer and the applicant and the delivery of the IMR decision (2 September 2011), in the light of the controversy surrounding the applicant’s age, particularly when he became nominally an adult, on attaining eighteen years of age. The delay was one of approximately five weeks. The period included the date in September, referred to in the applicant’s Taskera, which indicated that he was “fifteen years old in 2008”.
The applicant contends that the IMR failed to afford procedural fairness to him because the reviewer did not bring to his attention that he would regard the Taskera statement as an objective determination of the applicant’s age, which would necessarily crystallise between the date of hearing and the delivery of the decision.
It is asserted that this failure constituted a breach of procedural fairness and the rules of natural justice, in that the IMR failed to put to the applicant a potentially adverse piece of evidence, upon which he (the reviewer) might subsequently rely. The submission is founded on the statement of the IMR that the Taskera was “the only objective evidence as to the claimant’s date of birth”.
In Re Minister for Immigration & Multicultural Affairs & Anor; Ex Parte Miah[26] Gaudron J described the aspect of the rules of natural justice dealing with procedural fairness as follows:
“The basic principle with respect to procedural fairness is that a person should have the opportunity to put his or her case and to meet the case that is put against him or her.”
[26] See Re Minister for Immigration & Multicultural Affairs & Anor; Ex Parte Miah (2000) 206 CLR 57 at 86
On behalf of the applicant, it is submitted that he was not given the opportunity to respond directly to an influential element of the case concerning him – namely that the reviewer, by reference to the Taskera document intended to conclude that he would be an adult at the time of determination, which would potentially be after the hearing in question. Essentially, he was not given an opportunity to respond, in specific terms, to a possible implication of the Taskera.
In Commissioner for Australian Territory Revenue v Alphaone Pty Ltd the Full Court of the Federal Court held as follows:
“The subject is entitled to respond to any adverse conclusion drawn by the decision-maker on materials supplied by or known to the subject which is not an obvious and natural evaluation of that material. …”[27]
[27] Commissioner for Australian Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 591
It is the applicant’s position that he was entitled to respond to the conclusion, ultimately drawn by the decision maker from the Taskera, particularly as the applicant had consistently maintained to the IMR, at hearing, that he was seventeen years of age.
Essentially the applicant should have been told that there was a probability that the reviewer would conclude, from the Taskera, that he (the applicant) was about to turn eighteen in September, which would be prior to the delivery of the decision and therefore allow him to comment on this particular interpretation of the Taskera.
Ms White’s written submissions, in respect of this issue, are as follows:
“The delay of five weeks approximately between the date of the IMR hearing and date of the decision significantly adversely affected the case of the Applicant;
The Applicant was not made aware during the IMR hearing that the second respondent would potentially delay the determination of his claims until the Applicant was 18 years of age.
In preparing the IMR decision of the Second Respondent failed to afford procedural fairness to the Applicant, as he failed to bring to the attention of the Applicant the impact of the delay on the ‘objective’ determination as to age and ‘subjective’ determination as to credibility as to age.
It is a denial of natural justice to delay consideration of refugee claims of minors until they reach the age of maturity, then cast aside as a nullity, potent claims to refugeehood concerning their status as a minor.”
The issue at large, under this ground of appeal, turns on whether the reviewer was live to the possibility that the applicant was a minor and would remain a minor for some time into the future. A finding in this regard being integral to a determination of the issue of whether the applicant fitted within the social classification of minor male Hazara Shias.
In my view, the IMR gave close consideration to the conflicted and uncertain material regarding the applicant’s date of birth. This material included not only the Taskera but other evidence provided by the applicant, which was contradictory.
In this context, the reviewer considered that a birth date, for the applicant, of 1 January 1993 might be regarded as arbitrary. It being the case that the applicant had stated that he “he did not know about dates [only] his family and mother said he was seventeen years old.”[28]
[28] See CB at 169 [64]
In my view, a fair reading of the reviewer’s reasons does not indicate that he found that the applicant turned eighteen on 1 September 2008. Rather, he found that the Taskera was the only documentary evidence, which had been produced independently of the applicant.
From this document, the reviewer concluded that the applicant’s date of birth, “must necessarily be earlier than 1 September 1993”. This led to the non-specific finding that the applicant was “not less than eighteen years old” as at the date of the report.
In any event, this finding was subsumed by other findings, which the reviewer made in respect of the probability of Afghani minors, of Hazara extraction, being subjected to persecution, for a convention reason, within Afghanistan. The reviewer found that minors in Afghanistan were not persecuted on the basis of their membership of the particular social group of Hazara male minors.[29]
[29] See CB at 181 [140]
Accordingly, any finding as to the date of birth of the applicant was immaterial to the state of affairs for Hazara minors in Afghanistan and can have had no consequence in terms of the reviewer’s ultimate decision that the applicant was not owed protective obligations by Australia. As such, it cannot be said that the IMR cast aside a “potent” claim for asylum.
The rules of natural justice have been described as “chameleon-like” in their nature, as a consequence of the requirement placed upon administrative decision makers to respond to different circumstances, depending on the particular statutory power being exercised.[30] Specifically, in Miah[31] McHugh J indicated that “the rules of natural justice are flexible and adaptable to the particular circumstances of each case.”
[30] See Kioa v West (1985) 159 CLR 550 at 612 per Brennan J
[31] supra
In all these circumstances, I am not satisfied that there has been any injustice accorded to the applicant in respect of the issue of the Taskera. Certainly given the reviewer’s finding regarding the situation for minor Hazaras in Afghanistan, there has been no “practical injustice” afforded to the applicant in respect of this issue[32] and it cannot be said that a potentially fertile ground for refugee status has been rendered nugatory, given that the IMR found that Hazara minors were not subject to persecution in Afghanistan.
[32] See Re Minister for Immigration & Multicultural Affairs Ex parte Lam (2003) 214 CLR 1 at [37] where Gleeson CJ said as follows: “Fairness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice.”
Accordingly, this ground of review fails.
Ground Three
The third ground of the application is as follows:
“The Second Respondent erred in relying on the existence of a particular fact namely, that the Applicant was not a minor, when such a fact had not been established.
Particulars
a. The Applicant has, since arrival on Christmas Island, always claimed he did not know his exact date of birth but that he was told by his Mother that he is 17 years old.
b. The RSA outcome dated 16 March 2011 accepted that the Applicant “appeared to be a young Hazara male”;
c. The only objective evidence relating to the applicant’s claims of being a minor is the Taskera identity card dated 1 September 2008, a translation of which is at CB98. The Taskera states the applicant is “15 years old in 2008”;
d. The Second Respondent rejects the claim the applicant is a minor on the basis of the Taskera being issued on 1 September 2008, and finds therefore that the applicant must have turned 18 on 1 September 2011 or earlier. The Second Respondent then finds the applicant is 18 years of age at the time of writing the report, 2 September 2011. The Taskera does not state the applicant is “15 years old as of 1 September 2008”, rather it states the applicant is “15 years old in 2008”;
e. The Applicant therefore could have turned 18 at any point in 2008, in fact, if correct DIAC practise has been followed by the DIAC officer in the Applicant’s entry interview, the applicant would have been given the generic date of birth of 31 December 1993; therefore turning 18 on 31 December 2011.”
This ground is closely related to ground two. It seems to be posited on the finding of fact of the IMR, regarding the applicant no longer being seventeen years of age, at the date of decision, was either unreasonable or illogical and, as a consequence, the reviewer did not properly consider an essential integer of his case, namely that he was liable to persecution as a member of a particular social group – male Hazara minors.
It has been held that an inherent requirement of a decision making power is that such power should be exercised reasonably or at least “not be exercised in a way that no reasonable person could exercise it.”[33] As such, in some circumstances, an erroneous finding of fact may constitute a jurisdictional error.[34]
[33] See Abebe v The Commonwealth (1999) 197 CLR 510 at 554 per Gaudron J
[34] See Craig v South Australia (1995) 184 CLR 163 at 179
To found a jurisdictional error, on this basis, the critical question is whether the determination was irrational, illogical and not based on findings or inferences of fact supported by logical grounds.[35]
[35] See Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 78 ALJR 992 at 998 per Gummow & Hayne JJ
Related to this argument, based on the claim that it was unreasonable or illogical for the IMR to conclude that the applicant was eighteen, is a subsidiary submission that this led to a failure, on the reviewer’s part, to consider an essential component of the applicant’s claim for asylum.
A failure to consider a claim raised expressly or implicitly on the material before a tribunal is a clear jurisdictional error. In Htun v Minister for Immigration & Multicultural Affairs, Allsop J (as he then was) described the nature of the review function as follows:
“The requirement to review the decision [pursuant to the provisions of the Act] requires the tribunal to consider the claims of the applicant. To make a decision without having considered all the claims is to fail to complete the jurisdiction embarked upon. The claims or claims and its or their component integers are considerations made mandatorily relevant by the Act for consideration… It is to be distinguished from errant fact finding. The nature and extent of the task of the tribunal revealed by the terms of the Act … make it clear that the tribunal’s statutorily required task is to examine and deal with the claims for asylum made by the applicant.”
It is the applicant’s case that one of the essential integers of his claim for asylum has not been properly considered by the reviewer and this is necessarily a jurisdictional error. The applicant contends that he has consistently maintained, from the time of his arrival in Australia and throughout the review process, that he is seventeen years of age. As such, it is submitted that the claim of being liable to persecution, as a result of his membership of a particular social group, namely Hazara male minors, was sufficiently articulated by him to require attention and consideration by the IMR.[37]
[37] See Dranichnikov v Minister for Immigration and Indigenous Affairs [2003] ALJR 1088 at [24]
Mr Smith, for the Minister, asserts that there is no illogicality or failure of reasoning, which can be attributed to the IMR, in his conclusion that the applicant was not less than eighteen years of age, at the date of decision. He further asserts that, in any event, the purported error is of no moment, as the reviewer did in any event consider the situation for Hazara male minors, in Afghanistan.
In support of his submission, Mr Smith points out that the actual finding of the reviewer was that the applicant, as at 2 September 2011, was “not less than eighteen years old”. This was consistent with the Taskera, which stipulated the applicant to be “fifteen years old in 2008” not that he turned fifteen on any particular date in September, particularly not 1 September 2008. Accordingly, it was a logical inference that the applicant’s actual date of birth might have been prior to 1 September 1993.
In addition, it is Mr Smith’s submission that there was ample evidence available to the IMR to allow him to reach the conclusion that the applicant was no longer a minor, at the decision making date. This evidence included the applicant’s own original indication, as to his date of birth, given on his arrival in Australia and other information provided by his advisors.
In this context, Mr Smith argued that the threshold to establish that an administrative decision is vitiated by illogicality or unreasonableness is a high one and in evaluating such an issue, a court such as this one, reviewing the decision of the initial fact finder, needs to be careful not to place itself in the position of conducting a de facto merits review.
In this respect Mr Smith relied on Re Minister for Immigration & Multicultural Affairs Ex Parte Applicant S20/2002, where Gleeson CJ said as follows:
“As was pointed out in Minister for Immigration & Multicultural Affairs v Eshetu, to describe reasoning as illogical, or unreasonable, or irrational, may merely be an emphatic way of expressing disagreement with it. If it is suggested that there is a legal consequence, it may be necessary to be more precise as to the nature and quality of the error attributed to the decision-maker, and to identify the legal principle or statutory provision that attracts the suggested consequence.
…
To describe as irrational a conclusion that a decision-maker is not satisfied of a matter of fact, or a state of affairs, because the decision-maker does not believe the person seeking to create the state of satisfaction, or to describe the process of reasoning leading to such a conclusion as illogical, on judicial review of an administrative decision, might mean no more than that, on the material before the decision-maker, the court would have reached the required state of satisfaction. …In a context such as the present, it is necessary to identify and characterise the suggested error, and relate it to the legal rubric under which a decision is challenged.”
Given his submission that there was evidence available to the reviewer to allow him to reach the impugned conclusion, Mr Smith submits that there can be no jurisdictional error, on this basis, in the IMR. In this regard, he relies on what was said by Mason CJ in Australian Broadcasting Tribunal v Bond as follows:
So long as there is some basis for an inference – in other words, the particular inference is reasonably open – even if that inference appears to have been drawn as a result of illogical reasoning, there is no place for judicial review because no error of law has taken place.[38]
[38] See Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at [356]
In my view, there is no legal error demonstrated by the finding of the IMR that the applicant was not less than eighteen years of age at the date of the relevant decision. This conclusion is not vitiated by unreasonableness, irrationality or a flaw in logic. Rather, it was a conclusion open to the reviewer.
In any event, given that the applicant did characterise himself as a youthful person, during the review process, particularly in the extensive submissions of his advisor, the IMR did consider the situation pertaining to the social group of Hazara male minors. He concluded that the difficulties posed for such individuals and the chance of harm, which might befall them in Afghanistan, did not constitute persecution for a convention reason.
Accordingly, I am not satisfied that this ground is made out.
Conclusions
During the course of the hearing, I made an order extending the time for the applicant to file an amended application to 28 March 2013. Counsel for the Minister objected to this extension but did not seek to be heard in respect of the issue.
Similarly, he objected to the extension of time for the making of the application for judicial review of the relevant decisions. In this regard, he points to the fact that some eight months passed between the date of the decision in question and his commencement of proceedings, in this court, on 18 May 2012.
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.”
Mr Smith points to the fact that the applicant has provided no explanation as to the delay in this matter. In addition, the Minister has not demonstrated any specific prejudiced occasioned to him by the delay. The application has in fact proceeded through argument to decision.
In the amended application, the applicant has sought an extension of time, in which to file the application for judicial review. The basis for the extension being that the original application had been ostensibly accepted.
In all these circumstances, I have reached the conclusion that an order should be made extending the time for the applicant to file his application, so far as it is necessary but otherwise the application should be dismissed and the applicant should pay the respondent’s costs fixed in the sum of six thousand four hundred and twenty-one dollars ($6,421.00).
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-six (126) paragraphs are a true copy of the reasons for judgment of Judge Brown
Date: 22 May 2013
[36] Htun v Minister for Immigration & Multicultural Affairs (2001) 194 ALR 244 at [42]
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Natural Justice
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Procedural Fairness
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Jurisdiction
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