DZAAM v Minister for Immigration and Citizenship
[2013] FCA 128
•1 March 2013
FEDERAL COURT OF AUSTRALIA
DZAAM v Minister for Immigration and Citizenship [2013] FCA 128
Citation: DZAAM v Minister for Immigration and Citizenship [2013] FCA 128 Appeal from: Application for leave to appeal: DZAAM v Minister for Immigration & Anor [2012] FMCA 994 Parties: DZAAM v MINISTER FOR IMMIGRATION AND CITIZENSHIP and DAVID CONNOLLY IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER File number: NTD 39 of 2012 Judge: MANSFIELD J Date of judgment: 1 March 2013 Date of hearing: 13 February 2013 Place: Darwin Division: GENERAL DIVISION Category: No catchwords Number of paragraphs: 30 Counsel for the Applicant: G Barns Solicitor for the Applicant: Madeleine Ogilvie & Co Lawyers Counsel for the Respondents: T Anderson Solicitor for the Respondents: Australian Government Solicitor
IN THE FEDERAL COURT OF AUSTRALIA
NORTHERN TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
NTD 39 of 2012
BETWEEN: DZAAM
ApplicantAND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentDAVID CONNOLLY IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER
Second Respondent
JUDGE:
MANSFIELD J
DATE OF ORDER:
1 MARCH 2013
WHERE MADE:
DARWIN
THE COURT ORDERS THAT:
1.The application for an extension of time to appeal is refused.
2.The applicant pay to the first respondent costs of the application, fixed at $6105.
Note:Entry of orders is dealt with under r 39.32 of the Federal Court Rules 2011.
[NB: Qantum of costs order varied pursuant to r 39.05 of the Federal Court Rules 2011 (Cth) 7 March 2013]
IN THE FEDERAL COURT OF AUSTRALIA
NORTHERN TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
NTD 39 of 2012
BETWEEN: DZAAM
ApplicantAND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentDAVID CONNOLLY IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER
Second Respondent
JUDGE:
MANSFIELD J
DATE:
1 MARCH 2013
PLACE:
DARWIN
REASONS FOR JUDGMENT
INTRODUCTION
On 2 November 2012, a Federal Magistrate dismissed an application by the applicant for judicial review of a recommendation of an Independent Merits Reviewer (IMR) in relation to his application for a protection visa under the Migration Act 1958 (Cth) (the Act).
The applicant seeks an extension of time within which to appeal from that decision. An extension of time is necessary because the proposed appeal was not instituted within the time prescribed. It is common ground that, in broad terms, there are two general considerations relevant to whether an extension of time to appeal should be allowed: see SZQHK v Minister for Immigration and Citizenship [2012] FCA 178 at [20]-[26]. The first concerns the explanation for the delay, and associated discretionary factors, including whether the proposed respondent has suffered any prejudice by reason of the delay. The second concerns whether, if an extension of time is granted, the proposed appeal has any prospect of succeeding. Even if the delay is explained, and there is no prejudice to the first respondent (the Minister) by reason of the delay, if there is no real prospect of any of the grounds of appeal succeeding, the extension of time should be refused.
The Minister accepts that the particular circumstances: the applicant’s explanation for the delay, its relatively short length of about a week, and the absence of prejudice to the Minister, mean that, if the Court considers that any of the proposed grounds of appeal might be successful, it is appropriate to grant the extension of time sought. However, the Minister contends that there is no such prospect of any of the proposed grounds of appeal succeeding.
The proposed grounds of appeal were amended at the commencement of the hearing. There are three specified proposed grounds of appeal, namely:
1.That the Learned Federal Magistrate erred in law in upholding the recommendation of the Second Respondent to the First Respondent namely, that the Appellant not be recognised as a person to whom Australia has protection obligations under the 1951 Convention relating to the Status of Refugees, as amended by the 1967 Protocol relating to the status of refugees.
2.The learned Federal Magistrate erred in not finding that the Second Respondent misunderstood and/or misconstrued a criterion (being the test under the Refugees Convention) about which he had to be satisfied for the purposes of establishing whether the Appellant was owed protection obligations pursuant to s 36 of the Migration Act, by elevating the standard by which the risk of harm for the Appellant is to measured or assessed to that of wholesale or indiscriminate killing or persecution.
3.The learned Federal Magistrate erred in not finding that the Second Respondent misunderstood and/or misconstrued a criterion (being the test under the Refugees Convention) about which he had to be satisfied for the purposes of establishing whether the Appellant was owed protection obligations pursuant to s 36 of the Migration Act, by discounting a “well founded fear” of harm through the use of the term “random violence” and because all travellers into and out of Jaghori were Hazara.
The first ground of appeal set out was not argued as a substantive ground of appeal, but was accepted to be more a general assertion based upon one or other or both of the second and third grounds of appeal.
To consider those grounds, it is necessary to understand the nature of the applicant’s claim for a protection visa under the Act, and how it was addressed firstly by the IMR, and then on the application for judicial review before the Federal Magistrate.
BACKGROUND
The applicant is a citizen of Afghanistan, a Shia Muslim and of Hazara ethnicity. He fled Afghanistan after the death of his father, and went to Pakistan and then to Iran. Ultimately, in about May 2008 he returned to Afghanistan and went to his village to collect a formal identity document which he had left there, and then went again to Pakistan to discuss his travel plans with his family. After that discussion, he returned to Kabul in late January 2009 to obtain a passport. Using that passport, he returned to Pakistan en route to Australia.
He arrived at Christmas Island on 7 March 2010. He was, therefore, an off-shore entry person as identified in s 5 of the Act. He promptly made a claim for a protection visa supported by a statutory declaration.
In his statutory declaration, he said that he feared persecution for a combination of reasons. Firstly, when he was about 12 or 13 years old, his father was killed by the Taliban, in particular by a Pashtun warlord, apparently in retaliation for the death some years earlier of that warlord’s own son. That warlord had left on his father’s body a note saying that the death of his father was only the beginning and that all his family would be killed. As the applicant was born in 1983, that occurred in the mid-1990s. The applicant said his elder brother had gone missing some years ago, and his mother had told him that his elder brother had disappeared when crossing the border into Afghanistan on his way to collect money from the farmers for whom he had worked; he did not himself know what had happened to his brother. However, he related that death to the threat from the warlord and so was concerned that that threat was an ongoing one in relation to him. Secondly, the applicant claimed that as a Hazara Shia in Afghanistan, he would not be protected from the Taliban and would be persecuted by them because of his race and ethnicity, and his religion.
Thirdly, he said he also feared the Taliban because he would be identified and at risk of persecution as a Hazara returning to Afghanistan from Australia as he might be perceived as working for the government.
His claim for a protection visa was rejected by a delegate of the second respondent following a Refugee Status Assessment given on 2 August 2010. He applied for an independent merits review, and on 29 April 2011, the IMR recommended also that the applicant not be recognised as a person to whom Australia has protection obligations.
It was from that decision that he applied, unsuccessfully, for judicial review of the decision of the IMR.
THE IMR DECISION
The IMR accepted that the applicant is a Hazara Shia. It was the IMR’s reasoning in relation to that particular status which was the main focus of attack as involving jurisdictional error before the Federal Magistrate. It is, therefore, necessary to note only briefly what the IMR decided in relation to the other claims.
The IMR accepted that the applicant’s father had been killed by a Pashtun warlord in retaliation for the death of the warlord’s son, and that the threatening note was left on his father’s body. He accepted that the applicant may have a subjective fear of ongoing retaliation. However, given the elapse of time between his father’s death and the present time, even in the light of his brother’s disappearance, the IMR did not consider that the threat was an ongoing real one, having regard to the fact that the applicant had lived over a period of 14 or more years mainly in Iran but on occasions in his family area in the Ghazni province in Afghanistan, and his family had lived in the Ghazni province over those years, without apparent detriment from the Pashtun warlords. The IMR did not accept that his brother’s disappearance had been related to that threat.
The IMR also did not accept that the personal circumstances relating to the applicant exposed him to the risk of persecution if he were to return there. It did not accept that there were any personal circumstances which might lead to the applicant attracting attention from the Taliban as a possible pro-government supporter, even as a person returning as a failed asylum seeker.
That left the claim that the applicant was at risk of persecution from the Taliban by reason of being a Hazara Shia. As to that, the IMR’s reasons at [61]-[65] were in the following terms:
61.I have accepted that there is considerable historical evidence that in the past Hazaras were persecuted by the Taliban when in power, and there have been isolated instances of apparent persecution on racial grounds since then. Consequently, there is a perception among the Hazaras that the Pashtun majority ethnic group which abuts much of the Hazarajat lands and the nomadic Kuchi Pashtun are a common risk to them as most Taliban are Pashtun.
62.The country information which I have studied suggests that there is considerable contradictory evidence as to how Hazara Shiia are treated in Afghanistan in the neo-Taliban era and different conclusions have been reached as to how they may be treated in the event that the Taliban returned to power. What is clear to me is that Afghanistan is a dangerous place for all, irrespective of ethnicity or religion, because of a strengthening insurgency and general lawlessness. There are considerable international forces presently in the country in the support of the Karzai Government and their declared intention is to remain there to confront the Taliban until the Afghan forces are capable of tackling the insurgents without direct foreign military assistance.
63.Consequently, although I have taken Professor Mailey’s views into account, I have given greater weight to the advice from DFAT and the UN agencies and found that in the foreseeable future, it is highly unlikely that the Taliban will resort to wholesale persecution of the Hazaras as occurred during their period in government and the claimant does not have well-founded fear of persecution for a Convention reason in the reasonably foreseeable future by reference to NATO’s likely departure from Afghanistan.
64.Nor am I satisfied from the country information available to me, that the Taliban are continuing to specifically target Hazara Shiia on the basis of their ethnicity or religion. Although I accept that there have been Hazara deaths at the hands of the Taliban, just as there have been deaths among all of Afghanistan’s tribal groups caused by Taliban activities. However, on the basis of country information, there is no evidence before me that Hazaras are indiscriminately killed by them 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 their 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 through 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. Consequently, 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 Act.
65.Consequently, I am not satisfied that Hazaras face a real chance of harm amounting to persecution from the Taliban, or their allies, simply because of their ethnicity or religion and I do not accept that the claimant’s identity as a Hazara and a Shiia automatically entitles him to be covered by the Convention definition. His claims must be considered in relation to his particular circumstance.
That passage is quoted in full because it attracted and was the focus of the submissions on behalf of the applicant on this appeal.
CONSIDERATION
The first ground attacked the decision of the Federal Magistrate, but simply because the Federal Magistrate had not concluded (as had been contended before him) that the IMR had wrongly elevated the standard by which the risk of harm to the applicant is to be measured or assessed to require wholesale or indiscriminate killing or persecution of Hazaras. The Federal Magistrate concluded that those comments on the part of the IMR were simply findings of fact which did not involve error on the part of the IMR.
In particular, it was argued, that [63] of the IMR’s reasons demonstrated such error by making the finding that it is “highly unlikely that the Taliban will resort to wholesale persecution of the Hazaras as occurred during their period in government”. The Federal Magistrate had earlier concluded at [38] of his reasons that:
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.
In my judgment, the IMR did not err in the manner asserted, and the Federal Magistrate did not err in properly understanding the approach of the IMR in addressing that contention.
It is, of course, correct to assert, as counsel for the applicant asserts, that a well-founded fear of persecution may be established without the particular asylum seeker having been persecuted in the past, but by looking at what has occurred in the past and what may occur in the future to determine whether that person has a well-founded fear of being persecuted if returned to the country of nationality: Minister for Immigration and Multicultural Affairs v Respondents S152/2003 (2004) 205 ALR 487. A substantial basis for a well-founded fear of persecution may exist even though the risk of it occurring is less than 50%: Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 389.
However, I do not discern that the IMR departed from those principles, or in particular applied a test or obstacle of a higher degree of satisfaction than that prescribed before concluding that the applicant was not entitled to a protection visa on the basis of a well-founded fear of persecution because he is a Shia Hazara, as it happened from Jaghori in the Ghazni province.
The IMR accepted that in the past, the Taliban when in power had discriminated specifically against the Hazara and had persecuted them on racial grounds. Having considered that historical evidence and the more recent country information, the IMR made the findings recorded at [63] and [64] in the passage quoted above. I do not regard the reference to “wholesale persecution” in [63] as demonstrating error on the part of the IMR in properly applying the test prescribed to determine the existence or otherwise of a well-founded fear of persecution. The passage quoted shows that the IMR carefully considered the past and relatively contemporary country information. It is apparent that the contemporary information supported the views recorded by the IMR based on country information that there is no evidence of a campaign by the current Taliban insurgency to target Hazaras and indeed that Hazaras were experiencing a relative “golden age” compared to their tragic past. It is accepted that there was independent country information which would support the findings of fact made by the IMR.
Consequently, the IMR properly considered whether the applicant’s fear that his Shia Hazara status might expose him to persecution by the Taliban if he were to return to Afghanistan in the foreseeable future was well-founded. To express the risk of that occurrence as “highly unlikely” does not indicate that the IMR misapplied the correct test. It is a finding of fact from which the IMR could readily, as he did, conclude that there was no real risk of the applicant being targeted by the Taliban by reason of his Shia Hazara status. The reference to “wholesale persecution” in the context of the IMR’s detailed earlier reference to the independent country information, and the past history of Taliban persecution of Hazaras by reason of their ethnicity, is in my view simply a reference to that past history. It is a reference to the indiscriminate persecution of Hazaras simply by reason of having that status or that ethnicity, rather than a discriminate persecution of particular Hazaras for particular personal characteristics or occupations or activities. The reasons of the IMR at [63] read in full show that the IMR looked to the current country information in deciding whether the Taliban, now or in the foreseeable future, might target the applicant by reason of his Hazara ethnicity (as they had done in the past) or his religion.
In my view, the IMR did not misdirect himself in reaching the conclusion which he expressed at [65] of his reasons. I note that the words “simply because” in [65] do not convey that the IMR took the view that it was necessary for there to be only one reason, namely a Convention reason, before refugee status could be established. It is a way of describing the applicant’s claim that, by reason of his ethnicity or religion, there was a real chance that he may be persecuted by the Taliban in the reasonably near future if he were to return to Afghanistan. It did not thereby indicate that that had to be the only reason.
As to the second ground of proposed appeal argued on behalf of the applicant, again in my view, the IMR did not fall into the error asserted. In respect of that contention, the critical passage is at [78] of the IMR’s reasons. It reads:
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.
I agree with the reasons of the Federal Magistrate. I do not think that that passage indicates that the applicant is at risk of persecution because of his ethnicity or religion. It is correct to say that, at least on the passage of the road from Jaghori to Kabul or return, persons undertaking that journey are at risk of being stopped and harmed by the Taliban. As the IMR found, based upon country information, the reason and the only reason that they would be stopped is to disrupt communications with Kabul. That is a non-Convention reason. The fact that, on that particular road, the majority of travellers would be Hazara because it is a road from a predominantly Hazara province to Kabul is an incidental fact. It does not follow that because most of the travellers on that particular road who were stopped and harmed by the Taliban were in fact Hazara, that they were vulnerable to being stopped and harmed for a Convention reason. The IMR made the finding that the reason why they would be stopped was unrelated to their ethnicity or religion, but simply related to the objective of the Taliban to disrupt communications between Kabul and that region (and as apparently also happened on other roads in other provinces to and from Kabul). It was not suggested that that road only was the subject of Taliban harassment because mainly Hazaras were travelling along it.
Accordingly, in my view, the Federal Magistrate correctly concluded that the IMR did not fall into error. On the material before him, the IMR was able to, and did, conclude that any such violence would be perpetrated for a non-Convention reason, and that the applicant if he travelled along that road would be vulnerable to such violence for a non-Convention reason. That is consistent with the IMR’s reasons at [64] in a slightly different context.
CONCLUSION
Accordingly, in my view, there is simply no foundation for concluding that the applicant has any reasonable prospect of succeeding on either of his two contentions in his proposed further amended grounds of appeal. In that circumstance, there is no reason to grant him the extension of time to appeal which he sought. His application should be dismissed. It was agreed between the parties that costs would follow the event, and if the application were unsuccessful that the costs of the first respondent should be fixed at $6105.
For the reasons given, the application for an extension of time to appeal from the decision and orders of the Federal Magistrate’s Court given in matter DNG 19 of 2011 on 2 November 2012 be refused. The applicant is ordered to pay the costs of the first respondent of the application fixed in the sum of $6105.
I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield. Associate:
Dated: 1 March 2013
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