DZAAM v Minister for Immigration

[2012] FMCA 944

FEDERAL MAGISTRATES COURT OF AUSTRALIA

DZAAM v MINISTER FOR IMMIGRATION & ANOR [2012] FMCA 944

MIGRATION – Judicial review – independent merits review recommendation – whether visa criterion misunderstood or misconstrued – whether wrong test or standard for establishing Convention nexus – whether protection by third parties wrongly equated to state protection – whether erroneous test or standard for determining well-founded fear of persecution – whether jurisdictional or other error.

Migration Act 1958 (Cth), ss.5, 91R(1)(c), 476

Chan & Ors v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379
Darabi v Minister for Immigration & Citizenship & Anor (2011) 250 FLR 301; [2011] FMCA 371
Minister for Immigration & Citizenship v SZONJ & Anor (2011) 194 FCR 1; [2011] FCAFC 85
Minister for Immigration & Ethnic Affairs v Guo & Anor (1997) 191 CLR 559
Minister for Immigration & Multicultural Affairs v Haji Ibrahim (2000) 204 CLR 1; [2000] HCA 55
Minister for Immigration & Multicultural Affairs v Respondents S152/2003 (2004) 222 CLR 1; [2004] HCA 18
Plaintiff M61/2010E & Anor v Commonwealth of Australia & Ors (2010) 243 CLR 319; [2010] HCA 41
SBWD v Minister for Immigration & Citizenship& Anor [2007] FMCA 1156
SZJVD & Ors v Minister for Immigration & Citizenship [2007] FMCA 817
SZATV v Minister for Immigration & Citizenship & Anor (2007) 233 CLR 18; [2007] HCA 40
SZBYR v Minister for Immigration & Citizenship (2007) 235 ALR 609; [2007] HCA 26

Applicant: DZAAM

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: DAVID CONNOLLY IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER

File Number: DNG 19 OF 2011

Judgment of: Lucev FM

Hearing date: 17 August 2011

Date of Last Submission: 17 August 2011

Delivered at: Perth

Delivered on: 2 November 2012

REPRESENTATION

Counsel for the Applicant: Mr J Gibson and Ms R Sharkey

Solicitors for the Applicant: NT Legal Aid Commission

Counsel for the Respondents: Mr P D’Assumpcao

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The application be dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT PERTH

DNG 19 OF 2011

DZAAM

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

DAVID CONNOLLY IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER

Second Respondent

REASONS FOR JUDGMENT

The application

1. The applicant is an offshore entry person as defined in s.5 of the Migration Act 1958 (Cth).[1] The applicant seeks judicial review under s.476 of the Migration Act of a recommendation by an independent merits reviewer,[2] that the applicant not be recognised as a person to whom Australia owes protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees.[3]

   [1] “Migration Act”.

   [2] “IMR Recommendation” and “IMR” respectively.

   [3] Collectively “the Convention”.

Orders sought

1. By an amended application[4] the applicant seeks the following final orders:

   1.A declaration that the recommendation of the Independent Merits Reviewer was not made in accordance with law, by reason of the ground/s of this application.

   2.An injunction restraining the Minister, by himself or by his Department, officers, delegates or agents, from relying upon the recommendation of the Independent Merits Reviewer.

   3.An order remitting the matter to the Independent Merits Reviewer (differently constituted) for determination according to law;

   4.Any other orders which the Court thinks fit;

   5.Costs.

   [4] “Application”.

Jurisdiction

1. The Application which seeks injunctive relief in this Court in relation to the still to be completed decision-making process by the Minister in relation to the IMR Recommendation, is within this Court’s jurisdiction for relief in relation to a migration decision.[5]

   [5] Migration Act, s.476(1); Plaintiff M61/2010E & Anor v Commonwealth of Australia & Ors (2010) 243 CLR 319 at 334, 344-345 and 358-360 per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; [2010] HCA 41 at paras.8, 50-52 and 99-103 per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ (“Plaintiff M61”); Darabi v Minister for Immigration & Citizenship & Anor (2011) 250 FLR 301 at 308 per Nicholls FM; [2011] FMCA 371 at para.31 per Nicholls FM.

2. The applicant made extensive submissions about the nature of the Application seeking review of the IMR Recommendation and the jurisdiction of this Court to undertake judicial review of the IMR Recommendation. It is unnecessary to repeat those submissions. It suffices to observe, as the Court has done above,[6] that it has jurisdiction to determine the Application. In any event, jurisdiction was not disputed by the Minister.

   [6] See para.3 above.

Grounds of the Application

1. There is a single particularised ground of Application as follows:

   1.The decision of the Second Respondent was made in breach of an essential pre-condition to its jurisdiction or the exercise of its power to recommend that the Applicant not be recognised as a person to whom Australia has protection obligations under the … Convention … and/or it failed to observe the requirements of procedural fairness and/or it exceeded its jurisdiction and/or constructively failed to exercise jurisdiction.

   PARTICULARS

   a)in that it misunderstood and/or misconstrued a criterion (being the test under the … Convention) about which it had to be satisfied for the purposes of establishing whether the Applicant was owed protection obligations pursuant to s36 of the Migration Act and/or failed to consider an issue going directly to the question whether that criterion was satisfied and/or a central element of the applicant’s claim

   i)      It elevated the risk of wholesale persecution and indiscriminate killing of Hazaras as the test or standard by which a Convention nexus was to be established and wrongly reasoned that the fact that Hazaras make up a significant proportion of the local population the killing of some of them is hardly surprising but does not equate with the deliberate targeting of Hazaras on ethnic or religious grounds.

   ii)     In view of the specific country information regarding the intentional targeting of Hazaras using the roads into and out of Jaghori, the Second Respondent erred in applying the Convention test of “well-founded fear” by combining its reasoning regarding all travellers being Hazara to discount the risk of harm on the grounds of race and/or in conjunction with the use of the term “random” violence

   iii)    The Second Respondent’s reasoning does not apply the real chance test and ask the question regarding the risk of harm the Applicant himself faces when it found that since many local people still use the roads where Taliban activity might occur and accept the risk involved it does not give weight to his claim that his imputed political opinion which would obviously be shared by many other travellers would result in wholesale slaughter of travellers. It erred by:

   a)Taking into account acceptance of risk by travelling on the roads as legally relevant to the issue of whether the feared harm or persecution is Convention-related when it is not.

   b)Not appreciating that the fact that the Applicant’s fear would be shared by many others does not make it any less a fear on the basis of imputed political opinion

   c)the standard of risk of harm by which the risk for the Applicant as a traveller on account of the Convention ground of imputed political opinion is wrongly measured by or assessed to that of wholesale slaughter

   iv)     the Second Respondent erred in equating protection by third parties with State protection (at par [83]) when legal principle doe[s] not support such a proposition

   v)     the Second Respondent was not satisfied it would be reasonable to relocate to Kabul “especially as I have found that return to Malistan would be more desirable” which has nothing to do with the Convention test and reflects the imposition of an erroneous test or standard about whether the Applicant has a well-founded fear of persecution.

2. Read in conjunction with paragraph 1 of the grounds and paragraph (a) of the particulars, sub-paragraphs (i) to (v) hereafter will be referred to as grounds 1 to 5 respectively.

Background

1. The applicant is a citizen of Afghanistan, a Shia Muslim of Hazara ethnicity.[7] The applicant fled Afghanistan after the death of his father, and went to Pakistan and then Iran. After hearing that Australia was receiving refugees in about May 2008 he returned to Afghanistan and went to his village to collect his tazkira,[8] and then proceeded to Pakistan to discuss his travel plans with his family. They agreed that he would return to Kabul in late January 2009 to obtain a passport. Thereafter, he returned to Pakistan on route to Australia.[9]

   [7] Court Book (“CB”) 6 and 58. Specifically, the applicant claimed to have been born in Jaghori province: CB 58.

   [8] Unexplained in the IMR Recommendation, a “tazkira” is apparently the most common form of identity document used in Afghanistan, usually obtained at birth, but also obtainable when a person is an adult, provided (in cases where there is no birth record) that there are witnesses to testify to an applicant’s origin in a particular place. See Supplementary Court Book (“SCB”) 18.

2. The applicant is an offshore entry person,[10] who arrived at Christmas Island on 7 March 2010[11] and submitted claims in support of a request for a Refugee Status Assessment[12] on 7 May 2010.[13] The RSA Request was accompanied by a statutory declaration made by the applicant on 7 May 2010.[14]

   [10] Migration Act, s.5.

   [11] CB 83.

   [12] “RSA”.

   [13] CB 27 (“RSA Request”).

   [14] CB 58-60 (“Statutory Declaration”).

3. In the Statutory Declaration the applicant claimed to fear persecution because:

   a)when he was about 12 or 13 years old, his father was killed by the Taliban, in particular, by a Pashtun warlord, seemingly in retaliation for the death some years earlier of the warlord’s own son, and “[o]n his [father’s] body was a note saying that this was only the beginning and they would kill all his family”;[15]

   b)his elder brother went missing some years ago, and his mother told him that his elder brother disappeared when crossing the border into Afghanistan on his way to collect money from the farmers for whom he had worked,[16] but he acknowledged that he did not actually know what happened to his brother;[17] and

   c)the Pashtun are looking for him, and he will not receive protection from the Taliban in Afghanistan because of his race and ethnicity, as a Hazara.[18]

   [15] CB 18.

   [16] SCB 18.

   [17] CB 21.

   [18] SCB 18.

4. The applicant advanced a further claim during the RSA Assessment to the effect that the Taliban would think that he was returning to Afghanistan to work for the government.[19]

   [19] CB 85.

5. On 2 August 2010 the RSA Assessment found that Australia did not owe the applicant protection obligations.[20]

   [20] CB 83-91 (“RSA Assessment”).

6. On 19 August 2010 the applicant applied for independent merits review of the RSA Assessment.[21]

   [21] CB 92-94.

7. On 29 April 2011 the IMR recommended that the applicant not be recognised as a person to whom Australia has protection obligations.[22]

   [22] SCB 34, IMR Recommendation at paras.93-94.

8. On 10 June 2011 the applicant applied to this Court for judicial review of the IMR Recommendation.

IMR Recommendation

1. The IMR accepted that the applicant is a Hazara Shia.[23]

   [23] SCB 26; IMR Recommendation at para.56.

2. The IMR set out the applicant’s claims that:

   a)“there was no peace in Afghanistan”;

   b)if he returned to Afghanistan, “the Taliban would say that as a young man he had returned to serve the government”; and

   c)the Pashtun “would kill me because we had a problem with the Pashtun”.[24]

   [24] SCB 27; IMR Recommendation at para.59.

3. The IMR first addressed a claim that the applicant’s life would be in danger if he returned to Afghanistan because he is a Hazara and a Shia from Jaghori in Afghanistan.[25] The IMR accepted that historically Hazaras were persecuted by the Taliban when in power, and said that there have been isolated instances of apparent persecution on racial grounds since the Taliban left power. The IMR considered that this gave rise to a perception among the Hazaras that the Pashtun majority, and the nomadic Kuchi Pashtun, are a common risk to Hazaras, as most Taliban are Pashtun.[26]

   [25] SCB 27: IMR Recommendation at para.60.

   [26] SCB 27; IMR Recommendation at para.61.

4. The IMR considered various pieces of country information as to how Hazara Shia are treated by the Taliban. On the basis of this information, the IMR concluded that “Afghanistan is a dangerous place for all, irrespective of ethnicity or religion, because of a strengthening insurgency and general lawlessness”.[27] Based on advice from the Department of Foreign Affairs and Trade[28] and United Nations agencies the IMR found that “in the foreseeable future it is unlikely that the Taliban will resort to wholesale persecution of the Hazaras”.[29] The IMR then found that the applicant does not have a well-founded fear of persecution for a Convention reason by reference to NATO’s likely departure from Afghanistan.[30]

   [27] SCB 27; IMR Recommendation at para.62.

   [28] “DFAT”.

   [29] SCB 27; IMR Recommendation at para.63.

   [30] SCB 27; IMR Recommendation at para.63.

5. The IMR was not satisfied, on the basis of country information before him, that the Taliban continued to specifically target Hazara Shia.[31] The IMR specifically observed that:

   … there is no evidence before me that Hazaras are indiscriminately killed by them [the Taliban] on ethnic or religious grounds. In the Hazarajat for example, specific Hazaras have been killed especially when interdicted by the Taliban on the roads but that targeting appears to be related to suspicion that they were working for the government, its agencies or NGOs. Similarly Hazara farmers and farm workers and travellers have been killed indiscriminately by IEDs planted on tracks by the Taliban throughout the rural areas in an effort to show that the writ of the central government does not run. As Hazara make up a significant proportion of the total population of the Hazarajat, the fact that some are killed is hardly surprising but I am not satisfied that this equates with the deliberate targeting of Hazaras on ethnic or religious grounds which would be covered by the Convention … nor am I satisfied that their deaths are the result of ‘systematic and discriminatory conduct’ within the terms of s 91R(1)(c) of the [Migration] Act.[32]

   Accordingly, the IMR proceeded to consider the applicant’s particular circumstances to determine whether they engaged Australia’s protection obligations.

   [31] SCB 27-28; IMR Recommendation at paras.64-65.

   [32] SCB 28; IMR Recommendation at para.64.

6. The IMR accepted that:

   a)the applicant’s father was killed by a Pashtun warlord in Malistan in retaliation for the death of the warlord’s son;

   b)a note was left on the father’s body threatening the entire family;[33] and

   c)the applicant may therefore have a subjective fear of retaliation.[34]

   The IMR concluded that the applicant’s father’s death occurred some time between 1996 and 2002.[35]

   [33] SCB 28; IMR Recommendation at para.66.

   [34] SCB 28; IMR Recommendation at para.68.

   [35] SCB 28; IMR Recommendation at para.66.

7. The IMR also accepted that the applicant’s brother disappeared,[36] and that his disappearance would have contributed to the applicant’s subjective fear that he may face persecution at the hands of the Taliban or other non-state players.[37] The IMR was not, however, convinced that the applicant’s brother’s disappearance was linked to a Convention ground, and observed that as he was collecting money from farmers for his services, this “made him a ripe target for the bands of robbers, as well as the Taliban who are known[n] to infest the border region [between Afghanistan and Pakistan].[38] Both in relation to the brother, and generally, the IMR noted that:

   … the claimant gave me evidence that not only did nothing untoward occur to him or other members of his family over that long period of over 10 years, in addition, he claimed that because Sayeds lived in his village and were respected by the Taliban, the community which would have included his family, was relatively safe … it is not plausible that if … [the warlord] was set upon seeking revenge as claimed, that he would have allowed the family (less the claimant) to live in his district for some 14 years unhindered …”[39]

   [36] SCB 28; IMR Recommendation at para.69.

   [37] SCB 28-29; IMR Recommendation at para.70.

   [38] SCB 29; IMR Recommendation at para.71.

   [39] SCB 29; IMR Recommendation at paras.70-71.

8. The applicant’s mother died in Pakistan, but there was no Convention-related reason for that death according to the IMR.[40]

   [40] SCB 29; IMR Recommendation at para.72.

9. The IMR found that although the applicant “may have had a subjective fear of persecution … because of the note on his father’s body targeting the family, I have not accepted his claim that his subjective fear of persecution was objectively based over a period of some 14 years, because over most of this period, the claimant was living in Iran and according to his evidence, nothing untoward happened to his family while they lived in Dora [in Ghazni Province in Afghanistan]”.[41]

   [41] SCB 29; IMR Recommendation at para.73.

10. In relation to a claim of inadequate state protection for Hazara Shias, the IMR referred to July 2010 DFAT advice that the four Hazara Districts in Ghazni Province were safe, but that travel in to and out of Jaghori was of concern as Taliban insurgents had endeavoured to isolate that district by making the roads insecure, and thus restricting the movement of Hazaras in to and out of the district. The IMR also took into account UNHCR and DFAT country information that Malistan is a relatively safe district because it has a predominance of Hazara, and the ethnic political parties and commanders who control the districts have not allowed the Taliban, or the government, to gain a foothold. The IMR therefore did not accept that there was evidence the applicant had been targeted, and rejected his assertion that he would be at risk of persecution from the Taliban just because he is a Shia Hazara from Jaghori.[42] Additionally, the IMR put to the applicant that there was credible evidence from the UNHCR, and other sources, that the Taliban is not targeting Hazaras on ethnic nor religion grounds for persecution in Maliston. The applicant did not provide evidence to the contrary to the IMR.[43]

    [42] SCB 30; IMR Recommendation at paras.74-75.

    [43] SCB 30; IMR Recommendation at para.76.

11. On the basis of DFAT advice, the IMR accepted that Hazaras would not be targeted by the Taliban because they had sought asylum in the West, and that those who were targeted had been identified by the UNHCR as those who work for the Afghanistan government.[44] The IMR found that there was no evidence that the applicant worked with the Government, or any Government agency, and further found that he had never been an employee of the Government or of any non-Government organisation,[45] and that his age (27 years old) did not mark him out as a possible Government supporter.[46]

    [44] “the Government”.

    [45] “NGO”.

    [46] SCB 30-31; IMR Recommendation at paras.77 and 79.

12. In relation to the applicant’s return to Afghanistan, and in particular, Malistan, as a Hazara Shia, the IMR said:

    I have accepted that if the claimant was to return to Afghanistan and returned to Malistan, he would have to travel from Kabul by road to Jaghori and continue to use that road for normal movement. Since Jaghori is almost 100 per cent Hazara it is reasonable to conclude that most travellers would also be Hazara. Consequently, I do not accept that if or when the Taliban stop travellers (including possibly the claimant) they would be doing so because of their ethnicity or religion. Country information indicates that they are interdicting the main road to disrupt communications with Kabul. The possibility of random violence for a non-Convention reason is not covered by the Convention.

1. The IMR then dealt with whether the applicant would be ascribed with an imputed political opinion as a person who travelled.[48] The IMR observed that:

   I have also considered his claim that he may well be at risk of harm arising from his imputed political opinion as a person who travelled, despite being aware from ‘night letters’ that the Taliban had warned people not to use the road. I am aware that DFAT received advice from a Hazara MP concerning these night letter[s]. However, I have taken into account the ‘real chance’ test in Chan v MIEA (1989) 169 CLR 379 and considered whether this risk is ‘far fetched, remote or insubstantial’. I am satisfied on the evidence before me that while there are designated roads such as the main road between Qarabagh and Kabul where Taliban activity is relatively common, and on which the claimant would have a subjective fear of possible persecution on the grounds of his imputed political opinion, should he randomly encounter Taliban, I am satisfied from country information … that even Taliban targeted roads are not always closed by them. While there have been targeted killings of persons of interest to the Taliban when travelling on those roads, the general warning contained in the ‘night letters’ was directed at installing in the local population a fear of the Taliban. The claimant’s evidence clearly suggests that although there is a common subjective fear, many locals do still use the roads and accept the risks involved. In this context I have not given weight to his claim that his imputed political opinion which would obviously be shared by many other travellers would result in wholesale slaughter of travellers which, according to country information, has not occurred. Furthermore, there are other roads which are considered safer although slower. As previously noted, the claimant, although a Hazara and a Shiia, does not have a UNHCR profile which would bring him to the attention of the Taliban as he has never been an employee of the government or of an NGO. Nor have I plausible evidence that his age (27 year old) would set him out as a possible supporter of the government, given the country information above. I am not satisfied that his claimed imputed political opinion would lead to persecution covered by the Convention.[49]

   [48] SCB 31; IMR Recommendation at para.79.

   [49] SCB 31, IMR Recommendation at para.79.

2. The IMR also gave consideration to the question whether there was state protection available. The IMR found that:

   a)there is no adequate state protection available to Hazaras or other Afghans in Jaghori or Malistan; and

   b)the applicant would not be at risk of persecution as effective protection from non-state players would be available.[50]

   [50] SCB 32; IMR Recommendation at para.83.

3. The IMR also found that the deaths of the applicant’s father and his brother did not suggest a pattern of persecution by the warlord or the Taliban now, or in the foreseeable future.[51] Although the IMR accepted that the applicant’s father had died at the hands of a Pashtun warlord over a Hazara land dispute, he did not accept that there was Taliban involvement, as the Taliban did not control much of the Hazarajat.[52]

   [51] SCB 32-33; IMR Recommendation at para.86.

   [52] SCB 32; IMR Recommendation at para.84.

4. With respect to the applicant’s brother the IMR said that there was insufficient evidence that his disappearance was caused by the Taliban, or the warlord, and reiterated his earlier view that he may have been killed by one of the numerous robber bands inhabiting the border region. Given that 15 years passed between the death of the father and the disappearance of the brother, the IMR was not convinced that the warlord was responsible for the brother’s death.[53] Consequently, the IMR was not satisfied that there was a pattern of persecution instigated by the warlord, or that if the applicant were to return to Afghanistan, there was a real chance that he would be persecuted for his father’s alleged involvement in the death of the warlord’s son.[54]

   [53] SCB 32; IMR Recommendation at para.85.

   [54] SCB 32; IMR Recommendation at para.86.

5. The IMR was not satisfied that as a consequence of NATO forces leaving Afghanistan that there was a prospect of the Taliban re-commencing indiscriminate attacks on Hazaras on the basis of their ethnicity and religion which would put the applicant at risk of persecution.[55] The IMR found that it was not the intention of the United States or NATO to leave the present Afghanistan government unaided, and that in any event Taliban influence in the Hazarajat would be kept under control by Hazara strongmen who still wield considerable influence both locally as well as in Kabul.[56] Having noted the High Court judgment in SZATV v Minister for Immigration & Citizenship & Anor,[57] and the principle that a person will be excluded from refugee status if it would be reasonable to expect them to seek refuge in another part of the same country,[58] the IMR found that the applicant could return to Malistan and that he would not face persecution there.[59] The IMR also found that it would not be reasonable for the applicant to relocate to Kabul, “especially as [the IMR]…found that return to Malistan would be more desirable”.[60]

   [55] SCB 33; IMR Recommendation at paras.87-88.

   [56] SCB 33; IMR Recommendation at paras.87-88.

   [57] (2007) 233 CLR 18; [2007] HCA 40 (“SZATV”).

   [58] SZATV CLR at 27 per Gummow, Hayne and Crennan JJ and at 41-42 per Kirby J; HCA at paras.24 and 27 per Gummow, Hayne and Crennan JJ and para.78 per Kirby J.

   [59] SCB 32-34; IMR Recommendation at paras.89-90.

   [60] SCB 34; IMR Recommendation at paras.91-92.

6. The IMR found that the applicant did not meet the definition of a refugee, and did not have a well-founded fear of persecution for reasons of race, religion, membership of a particular social group or political opinion. The IMR recommended that the claimant not be recognised as a refugee.[61]

Ground 1 – wrong test or standard by which a Convention nexus is established – Hazara race (or ethnicity)

[61] SCB 34; IMR Recommendation at paras.93-94.

Applicant’s submissions

1. The applicant submitted as follows:

   a)that the IMR fell into error in the approach it adopted to negating the existence of a Convention nexus or relationship of feared harm to the applicant’s status as a Hazara;[62]

   b)when read together, paragraphs 62, 63 and 64 of the IMR Recommendation[63] elevate the standard by which the risk of harm for the applicant on account of a Convention ground is to be measured or assessed, to that of wholesale or indiscriminate killing or persecution. To do that is to impose a far more demanding requirement than that contained in the Convention. Equally to say that all may be in danger,[64] does not obviate the risk at the Convention standard to the individual (in this case as a Hazara);[65]

   c)the absence of wholesale persecution (in the later context when dealing with imputed political opinion referred to by the IMR as “wholesale slaughter”) or indiscriminate killing on ethnic or religious grounds as happened in the past does not negate the “real chance” of persecution, nor does it enable the IMR to make a finding that the claimant does not have a well-founded fear of persecution;[66]

   d)as Chan & Ors v Minister for Immigration & Ethnic Affairs[67] shows, a substantial basis for a fear may exist even though there is far less than a 50 per cent chance that the object of the fear will eventuate;[68]

   e)to elevate the risk of harm on a Convention basis necessary to satisfy the Convention to the level which the IMR did is to misconstrue the Convention test;

   f)in the light of the country information,[69] and following the same line of argument, it does not follow that because Hazaras make up a significant proportion of the total population of the Hazarajat the fact that some are harmed, while hardly surprising, does not equate with deliberate targeting on ethnic or religious grounds. The fact that a whole ethnic group may be exposed to a risk of harm but only some are killed does not remove the Convention nexus. Although it may negate the well-foundedness of the Convention-related claim on the grounds of remoteness that is not how the IMR reasoned; and

   g)the legal flaw in the IMR’s reasoning at these different points infects its conclusions.[70] The errors are jurisdictional in character.

   [62] SCB 27-28; IMR Recommendation at paras.62-65.

   [63] SCB 27-28.

   [64] SCB 27; IMR Recommendation at para.62.

   [65]

   [66] SCB 27; IMR Recommendation at para.63.

   [67] (1989) 169 CLR 379 (“Chan”).

   [68] Citing Chan at 389 per Mason CJ, referring to Minister for Immigration & Ethnic Affairs v Guo & Anor (1997) 191 CLR 559 at 572 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ.

   [69] Particularly SCB 23 and 24; IMR Recommendation at paras.41 and 46.

   [70] SCB 25; IMR Recommendation at para.65.

The Minister’s submissions

1. The Minister submits that this ground is misconceived. This ground fixes attention on paragraph 78 of the IMR Recommendation,[71] where the IMR was addressing the claim as to ethnicity and religion, and said “Consequently, I do not accept that if or when the Taliban stop travellers (including possibly the claimant) they would be doing so because of their ethnicity or religion.”[72] Once it is appreciated that paragraph 78 of the IMR Recommendation focuses on this part of the claim (a claim which had already been rejected),[73] it is apparent that the applicant’s complaints must fail because there is no Convention nexus.[74] Because the IMR had already rejected this part of the claim, it makes no difference to the outcome even if the IMR erred as alleged by the applicant (which is not conceded).

   [71] SCB 30-31.

   [72] SCB 30-31; IMR Recommendation at para.78.

   [73] SCB 28; IMR Recommendation at para.65.

   [74] Citing SZBYR v Minister for Immigration & Citizenship (2007) 235 ALR 609 at 618 per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ; [2007] HCA 26 at para.29 per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ.

Consideration

1. The Court agrees with the applicant’s submission that the fact that a whole ethnic group may be exposed to harm, but only some are killed, does not remove the Convention nexus. That, however, is not this case when the IMR Recommendation is read carefully. What the IMR, having reviewed the available country information, says is that he is not satisfied that the Taliban “are continuing to specifically target Hazara Shiia on the basis of their ethnicity or religion.”[75] The IMR goes on to:

   a)accept that there have been Hazara, and other tribal group, deaths caused by the Taliban;

   b)say that there is no evidence that Hazara are indiscriminately killed by the Taliban;

   c)finds that in the Hazarajat where Hazara have been killed they have been specifically targeted because they worked for the Government, its agencies or a NGO, but finds that the applicant is not in any of those categories;[76] and

   d)that some Hazara farmers and farm workers and travellers were killed by IEDs placed throughout rural areas, but that the IMR was not satisfied that this was targeting Hazara on ethnic or religious grounds, or systematic and discriminatory conduct.[77]

   [75] SCB 27; IMR Recommendation at para.62.

   [76] SCB 31; IMR Recommendation at para.79.

   [77] SCB 27-28; IMR Recommendation at para.64; Migration Act, s.91R(1)(c).

2. The IMR reinforced these findings later in the IMR Recommendation by finding that the Taliban do not stop travellers “because of their ethnicity or religion” but rather to disrupt communications with Kabul.[78] The IMR thus finds that Hazara are not stopped on ethnic or religious grounds, and to the extent that they are stopped, it is associated with the Taliban disrupting communications with Kabul, and that when specifically targeted it has been because of their Government, Governmental agency or NGO work, that Hazaras have been killed, but that none of those categories apply to the applicant.

   [78] SCB 30-31; IMR Recommendation at para.78.

3. The IMR has therefore found that there is no relevant Convention nexus in relation to any Hazara killings by the Taliban. Moreover, that conclusion has been reached by reference to available country information in relation to the killing of Hazaras, and not by reference to the quantitative or qualitative assessment of the killing of those Hazaras, as is alleged in ground 1 by the applicant.

4. The applicant’s approach is therefore misconceived. There is nothing in the IMR’s approach to this issue which constitutes jurisdictional error. Others might not agree with his findings, or, indeed, the manner of expression of those findings, but at base they are soundly rooted in available country information, and are therefore discretionary factual findings which conclude that Hazara killings have no Convention nexus, and are therefore not capable of forming an objective basis on which to conclude that the applicant might have a well founded fear of persecution of harm from the Taliban.

5. Ground 1 therefore fails.

Ground 2 – wrong test or standard by which a Convention nexus is established – Hazara traveller

Applicant’s submissions

1. The applicant submits that:

   a)the submissions in ground 1 are repeated in ground 2;

   b)the use of the term “random violence” is another indication of an erroneous approach;

   c)in view of the specific information[79] regarding what can only be described as “intentional” targeting of Hazaras using the roads into and out of Jaghori, there is a clear error in the application of the Convention, by combining the reasoning regarding all travellers being Hazara, and thus interference not being Convention-related, and the use of the term “random” violence (when it could not be so described);

   d)a “random” act means a non-selective act, not deliberate or premeditated or intended. Unsystematic or random acts are non-selective.[80] So much is clear from SBWD v Minister for Immigration & Anor,[81] that an act would be random if it was not deliberate or premeditated or intended;[82] and

   e)further support for this analysis and its application here is provided in SZJVD & Ors v Minister for Immigration & Citizenship[83] where this Court said:

   Although the event in question was fortuitous and, indeed, isolated, as the Minister has submitted, the conduct towards the applicant was not random or unsystematic in the sense of being non-selective. The fact that the applicant and his wife were in the wrong place at the wrong time, as the Tribunal described it, was a random chance but the treatment which was meted out to the applicant was not random. It was specifically directed towards him by his political opponents because he was their political opponent.  To this extent, the Tribunal erred in finding that the conduct in question was not systematic and discriminatory.[84]

   [79] SCB 23, 24 and 25; IMR Recommendation at paras.41, 46, 51 and 52.

   [80] Citing Minister for Immigration & Multicultural Affairs v Haji Ibrahim (2000) 204 CLR 1 at 27-32, particularly at 32 per McHugh J; [2000] HCA 55 at paras.88-101, particularly at paras.99-100 per McHugh J (“Haji Ibrahim”).

   [81] [2007] FMCA 1156 (“SBWD”).

   [82] Citing SBWD at para.42 per Lindsay FM.

   [83] [2007] FMCA 817 (“SZJVD”), cited in SBWD at paras.39 and 40 per Lindsay FM.

   [84] SZJVD at para.18 per Cameron FM.

The Minister’s submissions

1. In respect of this ground the Minister repeats the submissions made in respect of ground 1.

Consideration

1. This ground fails for the same reasons as ground 1. In addition, the case of SZJVD cited by the applicant makes the very point that proves the applicant’s misconception. In SZJVD the Court found that the conduct was specifically directed toward the applicant by his political opponents because he was their political opponent.[85] This is precisely the point that is made by the IMR in the IMR Recommendation: those Hazaras who are stopped by the Taliban are killed because of their connections to the Government, Government agencies or NGOs, whom it would appear the Taliban perceive to be in political opposition to them. The IMR concluded that the same treatment would not be meted out to someone such as the applicant who has not worked for the Government, a Governmental agency or an NGO. This conclusion is one which was available on the country information to the IMR. The weighing and sifting of the available evidence and the conclusions which are reached with respect to the evidence before the IMR are a matter for the IMR and not this Court. The IMR’s factual assessments in this case, which were open to it, lead inexorably to the conclusion that the applicant cannot have an objectively well founded fear of future persecution[86] on the basis of his race, ethnicity or religion, for the reasons set out in relation to ground 1.[87]

Ground 3 – wrong test or standard by which a Convention nexus is established – imputed political opinion as traveller

[85] See para.40(e) above.

[86] S152/2003 CLR at 26-27 per McHugh J; HCA at para.74 per McHugh J.

[87] See paras.35-38 above.

Applicant’s submissions

1. The applicant submits that:

   a)the same approach the IMR took in assessing the first two issues governed his approach to the applicant’s claim of an anti-Taliban imputed political opinion as a person who travelled the roads despite night warning letters. It is flawed for substantially the same reasons;

   b)the IMR considers the applicant would have a subjective fear of harm on the grounds of imputed political opinion as a traveller on the roads should he randomly encounter the Taliban. The IMR reasons that since many local people still use the roads where Taliban activity might occur and accept the risk involved it does not give weight to his claim that “his imputed political opinion which would obviously be shared by many other travellers” would result in wholesale slaughter of travellers (which according to country information has not occurred). Apart from it not being his claim nor the correct application of the Convention test that there be such slaughter for there to be a real chance of harm, one incident is enough for there to be a real chance of persecution;[88] and

   c)the legal errors are:

   i)taking into account acceptance of risk by travelling on the roads as legally relevant to the issue of whether the applicant’s feared harm or persecution is Convention-related when it is not;

   ii)the fact that the applicant’s fear would be shared by many others does not make it any less a fear on the basis of imputed political opinion. Imputed political opinion is something that is attributed to a person by his or her would-be persecutors. In this case, the act of travelling contrary to the warnings issued by the Taliban would lead to the attribution of an anti-Taliban opinion; and

   iii)the standard of risk of harm by which the risk for the applicant as a traveller on account of the Convention ground of imputed political opinion is wrongly measured by, or assessed to be, that of wholesale slaughter.

   [88] See the applicant’s submissions in relation to grounds 1 and 2.

The Minister’s submissions

1. The Minister submits that:

   a)this ground complains that the IMR did not consider the risk the applicant faces on Taliban targeted roads. This complaint focuses on paragraph 79 of the IMR Recommendation,[89] where the IMR considered whether the applicant would be at risk of persecution because of an imputed political opinion when travelling on Taliban-targeted roads. The IMR accepted that the applicant would have a subjective fear of persecution when travelling on Taliban targeted roads. The IMR then noted the Taliban has killed some people of interest on these roads, but there were other safer, although slower, roads available. Ultimately the IMR found that the applicant did not have a “UNHCR profile” which would bring him to the attention of the Taliban; and

   b)this ground has no merit. The IMR considered the general situation in that area, the applicant’s subjective fear and, importantly, found that the applicant does not have a “UNHCR profile”. In this way, the IMR may be taken to have been saying that there is nothing about the applicant’s profile (including an imputed political profile) which would make him the target of the Taliban. While the IMR could have expressed himself with greater clarity here, the applicant has not established that the IMR misapplied the “real chance” test.

   [89] SCB 31.

Consideration

1. To the extent that ground 3 relies on the same reasons as grounds 1 and 2 it must fail for the same reasons as grounds 1 and 2 fail. Further, the IMR considered the applicant’s claim that he might be imputed with a political opinion as a consequence of being a traveller on the roads, and that he might be killed as a consequence. The IMR took that claim to its logical extension by suggesting that if such an imputation were correct then there would be “wholesale slaughter” because “many other travellers” also used the roads.[90] The choice of words is probably unfortunate, but makes the relevant point with dramatic impact. Immediately, however, the IMR points out that, according to the country information there has not been “wholesale slaughter”,[91] the inference being that neither the applicant nor the “many other travellers” are imputed with such a political opinion by the Taliban, save, as the IMR goes on to point out, for those who work for the Government, Governmental agencies or NGOs.[92] The applicant does not, therefore, in the view of the IMR have a profile which would see him specifically targeted by the Taliban when travelling the roads. Nor, for reasons set out above, can any political opinion otherwise be imputed by reason of travelling those roads.

   [90] SCB 31; IMR Recommendation at para.79.

   [91] SCB 31; IMR Recommendation at para.79.

   [92] SCB 31; IMR Recommendation at para.79.

2. The IMR considered the facts, and arrived at the conclusion open on the facts, that he was “not satisfied that the claimed imputed political opinion would lead to persecution covered by the Convention”.[93] Thus, there was no political opinion Convention nexus, and, therefore, no chance of an objectively well founded fear of persecution of the applicant by the Taliban when travelling on the roads. Once again these were factual findings rooted in available country information. They disclose no jurisdictional or other error by the IMR.

   [93] SCB 31; IMR Recommendation at para.79.

3. Ground 3 therefore fails.

Ground 4 – protection by third parties is wrongly equated with state protection

Applicant’s submissions

1. The applicant submits that protection by third parties (which the IMR considers would be available effective protection from non-official state players (local commanders or warlords)) is wrongly equated with state protection, when legal principle does not support such a proposition.[94] There are no legal authorities referred to which support such a proposition, and in the case of a Convention-related fear of persecution by non-state agents such as the Taliban the question remains whether there is adequate state protection in terms of an ability or willingness to protect. Where there is non-Convention related persecution by non-state agents then the question is whether there is state tolerance or condonation of the persecutory conduct.[95]

   [94] SCB 32; IMR Recommendation at para.83.

   [95] Citing Minister for Immigration & Citizenship v SZONJ & Anor (2011) 194 FCR 1; [2011] FCAFC 85 per Emmett, Rares and Perram JJ (“SZONJ”).

The Minister’s submissions

1. Ground 4 asserts that the IMR misunderstood or misapplied the test with respect to state protection. This argument is answered by the simple fact that it was not necessary for the IMR to consider state protection (although he did) because there was no Convention nexus. While this part of the IMR Recommendation was seemingly surplus to requirements, it does not produce the result that the IMR misapplied the law in fulfilling his task.

Consideration

1. There being no Convention nexus to any of the conduct alleged to give rise to a well founded fear of persecution on the part of the applicant, and in any event no evidence of a Convention reason that motivates the Government from preventing the violence, the question of protection from persecution or harm, whether by the state or by third parties, does not arise.[96] There can therefore be no jurisdictional error, or legal or procedural error, in respect of such a matter. Ground 4 therefore fails.

Ground 5 - erroneous test or standard about whether the Applicant has a well-founded fear of persecution

[96] SZONJ FCR at 10 per Emmett, Rares and Perram JJ; FCAFC at para.33 per Emmett, Rares and Perram JJ.

Applicant’s submissions

1. The applicant submits that in the context of the reasonableness of relocation, and a finding that it would not be reasonable to relocate to Kabul, the IMR refers to a previous finding it had made that it was desirable for the applicant to return to Malistan. While not of itself giving rise to error in the treatment of the internal flight alternative, this reference is a further signpost or indicator of the erroneous approach that was taken by the IMR to the applicant’s substantive claims.

The Minister’s submissions

1. The Minister submits that ground 5 is entirely misconceived. It refers to the IMR Recommendation as to relocation. Contrary, however, to the applicant’s complaint, the IMR found in the applicant’s favour here. The IMR found that it would be unreasonable for the applicant to relocate to Kabul.[97] And the IMR had already found that the applicant could return to Malistan without being at risk of persecution.[98] It was therefore unnecessary for the IMR to consider the question of relocation, and no discernable error is revealed in this part of the reasons. In any event, the IMR considered the applicant’s particular circumstances in determining whether it was reasonable, in the sense of practicable, for the applicant to relocate. This approach is consistent with what the High Court stated in SZATV.[99]

   [97] SCB 34; IMR Recommendation at paras.91-92.

   [98] SCB 33-34; IMR Recommendation at paras.89-90.

   [99] CLR at 26-27 per Gummow, Hayne and Crennan JJ; HCA at paras.23-26 per Gummow, Hayne and Crennan JJ.

Consideration

1. The submissions of the applicant in relation to ground 5 concede that there is no error in the treatment of the internal flight alternative. The IMR’s approach was entirely consistent with the principles expounded by the High Court in SZATV,[100] and reveals no jurisdictional, procedural or legal error. In the circumstances, ground 5 is, as the Minister submitted, entirely misconceived, and must fail.

   [100] CLR at 27 per Gummow, Hayne and Crennan JJ and at 41-42 per Kirby J; HCA at paras.24 and 27 per Gummow, Hayne and Crennan JJ and para.78 per Kirby J.

Conclusions and orders

1. The Court has concluded that all grounds alleged have failed. The Application must therefore be dismissed, and there will be an order accordingly.

2. The Court will hear the parties as to costs.

I certify that the preceding fifty-five (55) paragraphs are a true copy of the reasons for judgment of Lucev FM

Date:  2 November 2012

[47] SCB 30-31; IMR Recommendation at para.78.

Minister for Immigration & Multicultural Affairs v Respondents S152/2003 (2004) 222 CLR 1 at
26-27 per McHugh J; [2004] HCA 18 at para.74 per McHugh J (“S152/2003”) was cited.