AZAEA v Minister for Immigration

[2014] FCCA 1083

FEDERAL CIRCUIT COURT OF AUSTRALIA

AZAEA v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 1083

Catchwords:
MIGRATION – Review of Refugee Review Tribunal decision – where application made out of time – whether to grant application for an extension of time to make application – whether Tribunal failed to consider relevant country information – whether Tribunal considered applicant’s claim for complementary protection – where Tribunal disbelieved applicant as to why his family had relocated within home country – where Tribunal thereby disbelieved that family had relocated at all – where Tribunal considered generic claim only in relation to original home city – whether Tribunal’s reasoning in concluding that the applicant’s family had not relocated in his home country illogical – whether no rational or logical decision maker could arrive at same conclusion – whether Tribunal fell into jurisdictional error.

Legislation:  
Migration Act1958 (Cth) ss.65, 477

SZIFI v Minister for Immigration and Citizenship [2007] FCA 63

Applicant: AZAEA

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent: REFUGEE REVIEW TRIBUNAL

File Number: ADG 239 of 2013

Judgment of: Judge Raphael

Hearing date: 14 May 2014

Date of Last Submission: 14 May 2014

Delivered at: Adelaide

Delivered on: 14 May 2014

REPRESENTATION

For the Applicant: In Person

Counsel for the Respondent: Mr J Smith

Solicitors for the Respondent: Sparke Helmore

ORDERS

1. Name of the First Respondent be amended to “Minister for Immigration and Border Protection”.

2. Application for extension of time granted.

3. Application dismissed.

4. Applicant to pay the First Respondent’s costs assessed in the sum of $5,800.00.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT ADELAIDE

ADG 239 of 2013

AZAEA

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant is a citizen of Afghanistan. He is a Shia Muslim and a Hazara. He arrived in Australia on 29 March 2012 as an unauthorised maritime arrival. On 4 June 2012, he made an application to the Department of Immigration for a Protection (Class XA) visa under s.65 of the Migration Act1958 (Cth).[1]  A delegate of the Minister refused to grant him a protection visa on 26 July 2012.  The applicant applied for a review of that decision from the Refugee Review Tribunal.  He attended a hearing before the Tribunal where he was represented by a migration agent.  On 21 June 2013 the Tribunal determined to affirm the decision under review.

   [1] The ‘Act’.

2. The grounds upon which the applicant claimed to be a person to whom Australia owed protection obligations fell into two categories:  the generic and the specific.  The specific claims he made were that, as a result of his brother commencing a relationship with a Pashtun woman, his family, and in particular himself, became the subject of a feud between the parents of the Pashtun woman and his family.  He told that he believed he had been followed by persons associated with the Pashtun girl and had been harassed.  He stated that the girl’s family telephoned his family and threatened to make him disappear.  He believed that if he returned to Kabul, his life would be in danger from the family and that the authorities in Afghanistan would not give him protection because he was Hazara.  He told that, since coming to Australia, his father had died, and that his mother had relocated to Herat for her own safety. 

3. The generic claims that the applicant made were those associated with him being of Hazara ethnicity and Shia Muslim religion, both of which are acknowledged as minorities in Afghanistan.  He also claimed that, as a failed asylum seeker returning to Afghanistan, he would be in danger. 

4. The Tribunal questioned the applicant upon his story.  He told that, apart from being followed by persons he believed were related to his brother’s wife, he had not personally suffered any further from that feud, but he believed that it had a very deleterious effect upon his parents.  The Tribunal stated:

   “I put to him that the problem I had was that, like the delegate, I found it difficult to accept his account regarding the Pashtun girl’s family.  I said that I found he had so little information concerning this claim.  Secondly, I found it difficult to accept that the family were targeting him rather than anyone else in the family and also that he had not attempted to get protection from any source.” [71] [CB 149]

5. In regard to the applicant’s generic claims, the Tribunal considered a range of independent country information provided by those representing the applicant and other information that was available to the Tribunal from its own sources.  The Tribunal considered these matters between [CB151 and 159] and set out in detail the most important information, including that of Professor William Maley that was submitted to it on behalf of the applicant. 

6. The Tribunal made findings concerning the credibility of the applicant in relation to the claims he had made concerning his brother’s relationship.  At [120-125] [CB 160-161] the Tribunal iterates the claims, and states at [126] [CB 161]:

   “Having considered his vague claims and the fact that he has been given ample opportunity to obtain further information from his parents, I find that this account has been fabricated for the sole purpose of a positive outcome for his Protection Visa application and there is no substance to the claim at all.”

7. The Tribunal then went on to deal with the applicant’s evidence that his family had relocated to Herat:

   “On 12 October 2012 the Tribunal wrote to the applicant putting to him that, at the Tribunal hearing, for the first time, he had claimed that his parents had moved from Kabul to Herat and that the only reason for this was because of the situation with the Pashtun girl’s family.

   It was put to him that, if the Member found that the account of the Pashtun girl was not credible then, subject to his response the Member would also find that the family’s move to Herat was not credible since the only reason for it was because of the situation with the Pashtun girl. 

   On October 22^nd 2012 the Tribunal received a response stating that the statements regarding the claimed elopement were true, his claims to feel fear and persecution on a personal basis were true, his family had fled to Herat and that the only reason for that is the family’s fear of reprisals from the Pashtun family. 

   This response further led me to find that, if the account of the brother’s elopement with the Pashtun girl was genuine and that if it now caused the family to flee Kabul and move to Herat that he would have sought further details, or that the family would have given them to him.

   However, when he was asked at the Tribunal hearing he said that he had never asked his older brother about the relationship with the girl and, neither had he ever asked his parents.

   I find myself in a state of total disbelief in regard to his claims to have faced a real chance of serious harm from his brother’s claimed relationship with the Pashtun girl and, consequently his claims that his parents have fled to Herat solely for this reason. 

   Accordingly, I find that the applicant did not face a real chance of harm at the hands of a Pashtun family and, that his family are still in Kabul where they have lived all of his life.”  [126-133] [CB 161]

8. In regard to the applicant’s generic claims, the Tribunal preferred the evidence that it had received from its sources which indicated that there was no basis for a well-founded fear of persecution on the part of a Hazara living in Kabul given the substantive minority that lived in that city.  The Tribunal also considered that the applicant would not face a real chance of serious harm for reasons of his status as a failed asylum seeker based upon the independent country information cited. 

9. The Tribunal then turned to the issue of complementary protection.  It dealt with that very shortly at [174-175] [CB 165]:

   “Having found that there is not a real chance, that he faces serious harm, now or in the reasonably foreseeable future in his home area I note the Court’s findings in MIAC v SZQRB [2013] FCAFC 33 to where the court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition.

   I have found that the applicant does not face a real chance of serious harm if he returns to his home area of Afghanistan.  For the reasons discussed above, I find there is not substantial evidence such as I find as a necessary and foreseeable consequence of the applicant being returned to Pakistan that he faces a real risk of significant harm.”

10. On 5 August 2013 the applicant filed an application for review of the Tribunal’s decision with this court. That application for review was six days out of time, having been filed 41 days after the date of the Tribunal’s decision. Under s.477(2) of the Act, the court has the discretion to extend the time limit where the applicant has applied for an extension in writing and has explained the reasons for his delay. In this case, the applicant did apply for the extension of time in writing. Although he has not filed the usual affidavit explaining the reasons for the short delay, he told the court today – in a manner accepted by the respondent, although the evidence that he gave is not necessarily accepted – that he was confused at the time and was not really aware of the time limit.

11. It has been the practice of this court to grant extensions of time where the delay has been short and/or where there may be an arguable case that a jurisdictional error has been made by the Tribunal.  If the court declined to grant the extension of time, the matter would be unappealable.  In this case, for the reasons set out below, the court is of the view that an extension of time should be granted so that the decision of the court can be the subject of an appeal if it is thought appropriate by the applicant. 

12. The application cites two grounds.  The first is:

    “The Member has not considered relevant country information appropriately.”

    As indicated earlier, the Tribunal has set out, in some detail, the country information it did consider and, commencing at [155] [CB 163], it goes through each of the applicant’s generic claims to which independent country information is relevant, and explains why the information which it considers relevant has been accepted.  At [154] [CB 163] it makes a conclusion which applies not just to Hazaras but also to Shia Muslims that:

    “Given the relative secure and stable situation for Hazaras in Afghanistan and the security situation in Kabul generally, there is no compelling or persuasive evidence that this will change in the reasonably foreseeable future.  I find that the applicant does not face a real chance of persecution for reasons of his race, Hazara, now or in the reasonably foreseeable future.”

13. The task of the Tribunal in matters such as this is to consider and determine between what are often competing pieces of independent country information, and the court is not able to interfere if the determination of the Tribunal is made upon available evidence and the Tribunal’s decision record is able to indicate to a judicial reviewer how the Tribunal has come to its conclusions.  This has occurred in this case and, therefore, the first ground of application cannot succeed.

14. The second ground of application is

    “The Complementary Protection Obligation is not applied to the circumstances of the visa applicant.”

    It is correct that the Tribunal has dealt with the complementary protection considerations in two short paragraphs.  Indeed, only one of those really provides the reason for the Tribunal coming to its conclusion.  But the Tribunal has correctly identified the fact that the grounds upon which the applicant sought protection under the Convention are the same as those grounds upon which he sought complementary protection and, thus, if the Tribunal found against the applicant on credibility grounds in respect of his specific claims for Convention-related protection, it would be very difficult for it to have some different view in relation to complementary protection.  In this particular case, a complementary protection claim might have succeeded if, for example, the Tribunal accepted the evidence of the blood feud but declined to accept that the applicant would not receive State protection because of his minority position and that he was still in danger from the family.   But, as the Tribunal found that the applicant was not in danger from the family, in any event, these matters did not fall to be considered.

15. Mr Smith, who appears on behalf of the Minister, rightly points out that in the second paragraph of the Tribunal’s determination on complementary protection, it makes reference to Pakistan rather than Afghanistan.  In his helpful written submissions he discusses at some length the decision in SZIFI v Minister for Immigration and Citizenship [2007] FCA 63, where Greenwood J was faced with a decision that made several of these geographical errors which led his Honour to take the view that the Tribunal “may have had in mind facts, circumstances and considerations referable to other cases” at [33].

16. The Court does not believe that this is such a case.  The Court is of the view that the Tribunal made a typographical error only in inserting the word “Pakistan” instead of the word “Afghanistan” and is at fault only in not re-reading its decision record with a scrupulousness that one hopes for but rarely obtains.

17. The Court does have one matter of concern.  However, it is of the view that it does not constitute an error of jurisdiction.  It is this.  The Tribunal determined that because the applicant’s story about the association between his brother and the Pashtun girl was untrue, it followed that his family had not moved to Herat.  The move to Herat is important because the Tribunal’s decision on the generic matters is based upon him returning to Kabul where there is a 25 per cent minority Hazara population.  This may not pertain in Herat.  And certainly the Tribunal would have been required to consider the situation in Herat, which it did not do. 

18. In Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611, Crennan and Bell JJ opined at [130] – [131]:

    “In the context of the tribunal’s decision here, “illogicality” or “irrationality” sufficient to give rise to jurisdictional error must mean the decision to which the tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is “clearly unjust” or “arbitrary” or “capricious” or “unreasonable” in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.

    What was involved here was an issue of jurisdictional fact upon which different minds might reach different conclusions. The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.”

19. With respect to the Tribunal, this court considers that the reasoning by which it concluded that the parents did not relocate to Herat was flawed, but, with some reluctance, it has come to the conclusion that it was not so illogical or irrational that no rational or logical decision maker could come to the same conclusion.  It is of note that the claim that the applicant’s parents had recently relocated because of the situation with the Pashtun family was made for the first time orally to the Tribunal.  The Tribunal questioned the applicant as to whether the family had fled for any other reason and was told that there were no other reasons.  There would have been no issue had the Tribunal disbelieved the applicant about the reason for the move but accepted that the move had taken place.  Indeed, this may have been a more logical course to follow.  However, even though it did not say so expressly, it would appear that the Tribunal formed the opinion that the applicant invented the story of the family’s move to Herat simply to embellish his story about the Pashtun family.  Following the hearing, the Tribunal put to the applicant in writing that if it found that the situation with the Pashtun family was not credible it would disbelieve that the family had relocated.  It would appear that the applicant provided no other evidence that his family had relocated.  Instead he repeated his claim.  In the court’s opinion, despite the apparent lapse in logic, this matter narrowly falls into the category of cases where logical minds may differ.

20. It is because of the lingering doubt surrounding this aspect of the matter that the Court granted the applicant the extension of time that he sought so that those sitting in further judgment on the matter can give it the elevated consideration that is only possible from an Appellate Court.  So far as this Court is concerned the second ground of application must also fail, which means that the application shall be dismissed and that the applicant shall pay the respondent’s costs assessed in the sum of $5,800.00. 

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Judge Raphael

Associate: 

Date:  26 May 2014