DZAAM v Minister for Immigration and Citizenship

DZAAM, an Afghan national, sought a protection visa from the Minister for Immigration and Citizenship, which was denied. DZAAM, a Shia Muslim of Hazara ethnicity, fled Afghanistan due to the death of his father at the hands of the Taliban, and his fear of continued persecution due to his religious and ethnic background. The Independent Migration Review (IMR) rejected his claim, finding that there was no real chance of harm amounting to persecution from the Taliban due to his ethnic or religious identity. DZAAM sought judicial review of the IMR’s decision, which was also unsuccessful. DZAAM then appealed to the Federal Court, arguing that the IMR incorrectly applied the standard for assessing the risk of harm, requiring proof of wholesale or indiscriminate killing or persecution of Hazaras. The court found that the IMR’s decision was based on available country information and did not constitute jurisdictional error.

The court concluded that the IMR did not err in its application of the test for determining a well-founded fear of persecution. The IMR carefully considered past and contemporary country information, concluding that there was no evidence of a campaign by the current Taliban insurgency to target Hazaras. The court found that the IMR’s reference to “wholesale persecution” did not demonstrate error, as the findings were rooted in the available information. The Federal Magistrate correctly understood the IMR’s approach and did not err in concluding that the IMR’s findings were discretionary factual findings, not capable of forming an objective basis for concluding that DZAAM might have a well-founded fear of persecution. The court dismissed the appeal and ordered DZAAM to pay costs to the Minister.