DZAAO v Minister for Immigration
[2012] FMCA 41
•25 January 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| DZAAO v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 41 |
| MIGRATION – Independent merits review of refugee claims of offshore entry person – Applicant Hazara Shia Afghan – jurisdictional error – allegation reviewer failed to consider discrete integer of his claim for asylum namely persecution as a Hazara who had dishonoured members of a Pashtun family – alleged reviewer fell into jurisdictional error by impliedly applying standard of proof to applicant’s claims – no error found – application dismissed. |
| Migration Act 1958 (Cth), ss.5, 36, 476, 477 |
| Plaintiff M61/2010E v Commonwealth of Australia (2010) 272 ALR 14 SZQGP v Minister for Immigration [2011] FMCA 701 MZXLB v Minister for Immigration & Citizenship [2007] FCA 1588 Htun v Minister for Immigration & Multicultural Affairs (2001) 194 ALR 244 NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No.2) (2004) 144 FCR 1 Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] 75 ALD 630 Machmud v Minister for Immigration & Multicultural Affairs (2001) 66 ALD 98 MZYHT v Minister for Immigration & Citizenship [2011] FCA 659 Warnakulasuriya v Minister for Immigration & Multicultural Affairs [1998] FCA 336 MZXSA v Minister for Immigration & Citizenship (2010) 117 ALD 441 Chan v Minister for Immigration & Ethnic Affairs (1989) 87 ALR 412 Minister for Immigration & Ethnic Affairs v Guo [1997] 191 CLR 559 Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] 185 CLR259 SZMDS v Minister for Immigration & Citizenship (2010) 240 CLR 611 Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 |
| Applicant: | DZAAO |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | WILLIAM KENNEDY IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER |
| File Number: | DNG 22 of 2011 |
| Judgment of: | Brown FM |
| Hearing date: | 27 October 2011 |
| Date of Last Submission: | 27 October 2011 |
| Delivered at: | Adelaide |
| Delivered on: | 25 January 2012 |
REPRESENTATION
| Counsel for the Applicant: | Mr Gibson |
| Solicitors for the Applicant: | Northern Territory Legal Aid |
| Counsel for the First Respondent: | Mr d’Assumpcao |
| Solicitors for the First Respondent: | Australian Government Solicitor |
ORDERS
The application filed 21 June 2011 is dismissed.
The applicant pay the first respondent’s costs fixed in the sum of $5,850.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT DARWIN |
DNG 22 of 2011
| DZAAO |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| WILLIAM KENNEDY IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant arrived by boat, at Christmas Island, on 26 March 2010. He is an Afghan by nationality; a Hazara by ethnicity; and a Shia Muslim. He seeks asylum in Australia.
The applicant arrived without valid travel documents. As Christmas Island is excised from the Australian migration zone, he is to be regarded as an “offshore entry person” as defined by section 5 of the Migration Act (1958) (Cth) (hereinafter referred to as “the Act”).
The applicant was interviewed by officers of the Department of Immigration & Citizenship (hereinafter referred to as “the Department”) in order to assess his claim for refugee status. In this interview, he claimed to fear persecution from the Taliban and/or Pashtuns, who lived in the area of Afghanistan from which he originated.
The applicant claims that he initially left Afghanistan in 1999 as a result of a dispute with a Pashtun neighbour, Rozi Khan. The dispute arose when a horse owned by members of the applicant’s family wandered over to Rozi Khan’s village. When the applicant, his uncle and father went to the village to retrieve the horse, a fight broke out with Rozi Khan and his brothers. Shots were fired by Rozi Khan and his family.
A few weeks later, the Taliban occupied the Khan’s village and Rozi Khan and his family aligned themselves with the Taliban. Thereafter, members of the Khan family made threats against the applicant and his family. The Khan brothers claimed that the applicant and his family had dishonoured them by claiming the horse back.
In the immediate aftermath of this dispute, the applicant claims that the Taliban came to his village and forced young people to join them. As a result, he fled to the mountains and hid himself, until he was able to flee to Pakistan and ultimately to Australia, where he arrived in around 2000.
Whilst the applicant was outside Afghanistan, he claims that his father was kidnapped by Pashtuns but ultimately released after about eleven months. In 2002, the applicant voluntarily returned to Afghanistan from Australia. He returned to his village.
At this stage, it is the applicant’s position that he heard from a friend that the Taliban had ordered his death as he was regarded as an “infidel” and spy of a western country. This caused him to flee to Pakistan. Whilst he was in Pakistan, he learnt that the Taliban had attacked his father and caused him serious injury.
In 2003, a member of the Khan family was killed in a battle with the Afghan Army. It is the applicant’s position that the Khans hold him responsible for the death as they believe he was spying for the government at the time. The applicant continues to assert that the Taliban wish to kill him and a death warrant has been issued in respect of him.
The applicant also asserts that his father and brother were killed by the Taliban, whilst the applicant was in Pakistan, as they were unable to locate him. As a result of this incident, the applicant feared for his safety in Pakistan and fled to Australia, via Malaysia and Indonesia.
The applicant’s claim for refugee status depends on him satisfying the definition of “refugee”, provided by Article 1A(2) of the United Nations 1951 Convention and 1967 Protocol Relating to the Status of Refugees (“Refugees Convention”) which provides that a “refugee” is a person who:
“… owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”
On 14 February 2011, an officer of the Department determined that the applicant did not meet the necessary definition of refugee and accordingly was not a person to whom Australia owed a protection obligation under the Refugee’s Convention. The second respondent, Mr Kennedy conducted an independent merits review (hereinafter referred to as the “IMR”) of this decision.
Prior to the IMR, the applicant provided a further statement. In this statement, the applicant said as follows:
“My family’s difficulties with Rozi Khan and his sons go back many years. The original problem occurred because they believe that my family publicly shamed their family when my father, uncle and I went to their house to reclaim a horse which had wondered from our land. It may seem like a small incident but Rozi Khan has never excused us for our actions in going to his house to reclaim our property. In Afghanistan, Hazaras are considered to be insignificant and of little account. The Pashtuns who are Sunni Muslims believe that we are heretics. For us to stand up for our rights in front of them is something they believe is very shameful to them. The horse was very important to our family so we had no choice but to go and try to reclaim it. We had no idea that Rozi Khan would treat us so badly and target me. As the eldest son, I am responsible for carrying on the family name and protecting our family. This is also a reason they would target me.
Rozi Khan and his sons also believe that I am supporting the foreign troops in Afghanistan and that I was a spy for them. They hold me responsible for the death of their cousin at the hands of the Afghan Army. Rozi Khan was a commander of the Taliban so he had a lot of power in our area.”[1]
[1] See casebook at page 118
As part of the IMR, Mr Kennedy interviewed the applicant on 9 May 2011. In this interview, the applicant claimed that around four to six months after the first altercation with Rozi Khan, over the wandering horse, he had come across two sons of Rozi Khan, who had said to him that “they would kill him because Hazara were not allowed to come onto their land and that by coming to retrieve the horse he had dishonoured their family.”[2]
[2] See casebook at page 125 paragraph 30
Mr Kennedy summarised the applicant’s claims to be fearful that, if he returned to Afghanistan, he would suffer persecution, as arising on the following grounds:
·Because of his race (Hazara);
·Because of his religion (Shia);
·Because of his membership of a social group (failed asylum seekers returning from a western country).
Mr Kennedy characterised the argument arising over the horse to be “a dispute over ownership of a chattel.”[3] He also considered that the applicant’s account contained a number of improbable elements, although his evidence was “generally consistent”.[4]
[3] See casebook at page 141 at paragraph 111
[4] See casebook at page 135 at paragraph 175
However, Mr Kennedy did not accept that the applicant’s “family feud” involved the Taliban or that he himself had been the subject of Taliban death warrant.
As a consequence of these findings, Mr Kennedy did not accept that there was a satisfactory objective element to establish that the applicant had a well-founded fear of persecution if he returned to Afghanistan. Mr Kennedy also found that the subject of the dispute between the applicant and the Pashtun Khan family was not the applicant’s race or religion. The dispute was over ownership of a chattel.
In making his assessment of the applicant’s credit, Mr Kennedy noted that there was no corroborating evidence to any of the applicant’s claims regarding his violent involvement with the Khan family and the targeting of him and members of his family by the Taliban. In this context, Mr Kennedy indicated that an essential element of his task, as decision maker, was to assess the extent to which the applicant’s evidence was believable.[5]
[5] See casebook at page 135 at paragraph 74
Throughout his reasons, at a number of points where he rejected the applicant’s accounts of lacking credibility, Mr Kennedy noted that there was no independent corroboration of the applicant’s account of events.
Ultimately, Mr Kennedy determined that the applicant did not meet the criterion for a protection visa set out in section 36(2) of the Act. Accordingly, he recommended to the first respondent that the applicant not be recognised by him as a person to whom Australia owed a duty of protection under the Refugee’s Convention.
The applicant was provided with the IMR on 23 May 2011. He commenced proceedings, in this court, on 21 June 2011. It is accepted by all concerned that this was within the timeframe specified by section 477(1) of the Act, which is 35 days.
In his application, the applicant seeks a declaration that Mr Kennedy’s report is affected by legal error and injunctive relief to prevent the Minister and Officers of the Department from relying upon it.
In essence, the applicant asserts that Mr Kennedy’s report is vitiated by two distinct incidents of legal error. Firstly, it is asserted that the IMR failed to deal with an essential integer or component of the applicant’s case.
This integer was that he would be subject to persecution in Afghanistan because he would be targeted by members of the Khan family and the Taliban because he was a Hazara, who had affronted the honour of the Khan family by coming onto their land to demand the return of the horse. In so doing, he had rendered himself liable to persecution as the oldest son of a Hazara family, who was traditionally responsible for upholding the honour of his family name.
Secondly, it is asserted that the IMR applied a wrong or incorrect test to the applicant as to the establishment of his claims for protection by either impliedly or expressly requiring him to provide corroboration of his claims. Essentially, it is asserted that a standard of proof was imposed on the applicant, which is not required by the Act.
The first respondent concedes that the IMR is amenable to judicial review and is within this court’s jurisdiction pursuant to section 476 of the Act following the decision of the High Court in Plaintiff M61/2010E v Commonwealth of Australia.[6]
[6] See Plaintiff M61/2010E v Commonwealth of Australia (2010) 272 ALR 14
Pursuant to section 476, the Federal Magistrates Court has the same original jurisdiction in relation to migration decisions, as does the High Court pursuant to paragraph 75(v) of the Constitution. This provision grants the High Court original jurisdiction in all matters in which a writ of mandamus or prohibition or an injunction is sought against an officer of the Commonwealth.
Counsel for each of the parties accept that the decision of Mr Kennedy is reviewable only if a jurisdictional error of the kind described by the High Court in Plaintiff S157/2002 v Commonwealth of Australia[7] can be established. This requires the applicant to establish Mr Kennedy fell into an error of law by identifying a wrong issue, asking himself a wrong question, ignoring relevant material, relying on irrelevant material or, at least in some circumstances, making an erroneous finding or reaching a mistaken conclusion.
[7] See Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476
It is the function of the court to consider whether Mr Kennedy’s report reveals any error of law, including a denial of procedural fairness, in its reasoning or in the procedures followed before its making. The relief sought in the application can only be granted if I am satisfied that Mr Kennedy made such an error. It is not my function to engage in a merits review or make my own findings as to the applicant’s refugee status.[8]
[8] See SZQGP v Minister for Immigration [2011] FMCA 701 per Smith FM at [4]
Ground One – blood/dishonour integer
The applicant contends that Mr Kennedy has failed to deal with a core aspect of his claim for asylum, namely that as a Hazara who had affronted the dignity of the Pashtun Khan family and stood up for the rights of his own family, who were regarded by the Khans as being socially inferior, he would be targeted, by the Khans, as the oldest son of his family and the bearer of its family honour.
It is said that this integer of the applicant’s claim for refugee status was clearly articulated in his statement of 31 March 2011, when he stated that Hazaras are considered of little account by Pashtuns, who are Sunni and in particular when the applicant said: “As the eldest son I am responsible for carrying on the family name and protecting our family. This is also a reason why they would target me.”
In MZXLB v Minister for Immigration & Citizenship[9] Finkelstein J said as follows:
“It is not in dispute that the tribunal is under a duty to consider the various ways a claim for refugee status can be articulated from the material before it, whether or not the ground is mentioned by the applicant himself …”
It is the applicant’s position that Mr Kennedy did not consider this integer or aspect of the applicant’s case at all. Accordingly, he has failed to exercise the jurisdiction conferred upon him and fallen into legal error.
[9] See MZXLB v Minister for Immigration & Citizenship [2007] FCA 1588 at paragraph 14
It is the position of the first respondent that Mr Kennedy dealt with the substance of the applicant’s claim, which related to the dispute arising between the group of Hazaras, to which the applicant belonged and an opposing group of Pashtuns. It was clearly understood by Mr Kennedy that there was tension between these two groups, which was founded, in large part, on racial or ethnic differences.
In these circumstances, Mr Kennedy was not bound to deal with every specific incident raised by the applicant but essentially the claim of persecution, on the basis of dishonour, was bundled up with the other aspects of the applicant’s claim, which Mr Kennedy adequately dealt within the comprehensive reasons.
Essentially, the first respondent submits that it cannot be established that Mr Kennedy misunderstood the nature of the claim which was being promoted by the applicant. In his written submissions, counsel for the first respondent, Mr d’Assumpcao put it as follows:
“The reviewer’s reasons may be described as simplifying the claim, but it cannot properly be said that he did not understand all the nuances which underpinned it. … The reviewer understood that the dispute itself was not the problem, but the genesis of the problem. That is to say, Hazaras question Pashtuns and this caused shame. The shame allegedly motivated the Pashtuns to persecute the applicant and his family in the manner claimed.”[10]
[10] See first respondent’s contentions of fact and law filed 20 October 2011 at paragraph 20
Conclusions on ground one
It is clear to me that the applicant did “squarely” raise the issue that he was liable to persecution because the Pashtun Khans wanted to kill him because he, as a Hazara had dishonoured them by coming onto their land.[11] It is also uncontroversial that the failure to consider an integer of an applicant’s claim can amount to a jurisdictional error.[12]
[11] See casebook at page 125 at paragraph 30
[12] See Htun v Minister for Immigration & Multicultural Affairs (2001) 194 ALR 244 at [42] per Allsop J and NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 at [58]
In his summary of the applicant’s claims, Mr Kennedy found as follows:
“On the whole I find many details of the story related by [the applicant] to be improbable. However I am prepared to accept that there was some sort of conflict, possibly over a horse, between [the applicant’s] family and the Khans.
[The applicant] said that after this incident the two Khan brothers had encountered [the applicant] and threatened to kill him. They only stopped beating him when [the applicant’s] friends arrived. The original incident over the horse resulted in the Khans retaining the horse and [the applicant] accepting the loss. That the Khans, despite “winning” the confrontation, retained a hatred of [the applicant] to the extent of intending to kill him, does not seem entirely plausible. Even if there was a confrontation at this time it does not seem likely that it would have been life threatening to [the applicant].”“[13]
[13] See casebook at page 136-137 at paragraphs 83-84
Mr Kennedy accepted that there had been a conflict between the Hazara applicant and his family and the Pashtun Khans, possibly over a horse. He doubted some elements of the applicant’s account, as he was entitled to do. However, I do not think that it can be said that Mr Kennedy misunderstood the nature of the claim and so necessarily failed to consider it.
Mr Kennedy also understood that an element of the applicant’s claim related to the assertion that the Khans were associated with the Taliban and this was significant given the longstanding nature of the dispute between him and the Khans. In this context, Mr Kennedy said as follows:
“I am conscious that the import of the Taliban into a dispute between [the applicant] and Khans would greatly enhance [the applicant’s] claims of persecution for a convention reason. I have concluded that while the Khans may have had some acquaintance with the Taliban that they were not Taliban themselves, let alone commanders.”[14]
[14] See casebook at page 137 at paragraph 86
Mr Kennedy concluded that the dispute between the applicant and the Khans was one concerning a horse and did not appear to relate to the applicant’s race or religion. If the applicant had been threatened by the Khans, Mr Kennedy considered that it was likely to be due to the history between the various actors concerned, rather than due to the applicant’s race or religion. Therefore he was unable to reach the conclusion that the applicant had a well founded fear of persecution due to his race and religion.
In ApplicantWAEE v Minister for Immigration & Multicultural & Indigenous Affairs[15] the Full Court of the Federal Court pointed out that a tribunal determining refugee applications, although dealing with matters of great importance was nonetheless an “administrative body operating in an environment which requires the expeditious determination of a high volume of applications.” As such, it was not necessary for such a tribunal to provide reasons of the kind that might be expected of a court or was it necessary for such a tribunal “to refer to every piece of evidence and every contention” made by an applicant.
[15] ApplicantWAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] 75 ALD 630 at 641
In this context the Full Court reiterated the off quoted warning to courts performing a judicial review function in respect of such administrative tribunals that they were not to scrutinise the reasons of these tribunal “with an eye keenly attuned to error.” Rather, the court was required to give a fair reading to their reasons.
In this context, the Full Court in ApplicantWAEE said as follows:
“The inference that the tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which the contention rests which has been rejected. Where, however, there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the tribunal’s review of the delegate’s decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.”
In my view, Mr Kennedy’s reasons are comprehensive and thorough. There is no doubt that he has identified the issue that the applicant fears the Khans because of the longstanding dispute between him and them over the horse and this dispute had overtones of religious and ethnic prejudice, given the respective backgrounds of the actors concerned.
Mr Kennedy found that this dispute did not have sufficient nexus to any convention criterion to establish the applicant’s claim for refugee status. In my view, such a finding was open to Mr Kennedy and was dispositive of the blood/dishonour claim relating to the applicant’s status as the oldest son of his family.
For those reasons, I have to the conclusion that ground 1 cannot be sustained.
Ground 2 – requirement for applicant to provide corroborative evidence
Mr Gibson, counsel for the applicant, asserts that Mr Kennedy erroneously required the applicant to provide independent corroboration of each of the various aspects of his claim for protection. In this context, Mr Gibson relies on a number of specific extracts from the decision.
In the reasons, Mr Kennedy summarised the applicant’s claims of mistreatment, between 1994 and 2000, at the agency of the Khans and the Taliban. He points out that “there is no corroborating evidence of any of these events.”[16] In this context, Mr Kennedy goes on as follows:
“This, of course, is not particularly surprising but it does mean that I must rely completely on [the applicant’s] evidence. The task therefore is to assess the extent to which [the applicant’s] evidence is believable.”
[16] See casebook at page 135 at paragraph 74
In respect of an incident in 2003, where the applicant described his father’s house being attacked and his father being seriously injured, Mr Kennedy says as follows:
“I can find no corroboration of such an attack or of Taliban activity in Nili District at the time.”[17]
[17] See casebook at page 138 at paragraph 91
When considering the subjective elements of the applicant’s claim to have a fear of persecution, Mr Kennedy said as follows:
“In considering the subjective element I put considerable weight on [the applicant’s] actual experience as related in his arrival interview, in his RSA application, as detailed in the RSA records, his statements and in his IMR interview. However, while [the applicant’s] evidence in this regard has been generally internally consistent, as indicated above I do not accept that the events necessarily took place as related by [the applicant]. Nonetheless I accept, mainly on the basis of his statement that he holds such a far, that [the applicant] fears returning to Afghanistan and that he therefore satisfied the subjective element of having a well-founded fear.”[18]
[18] See casebook at page 139 at paragraph 97
In the context of the applicant’s name being placed on a Taliban “blood list”, Mr Kennedy indicates that he is “not convinced” that this is the case as the “only evidence [of it] has been attributed to information from a friend. He has not seen it directly and it is not apparent that members of his family have any direct or independent knowledge of the death warrant.”[19]
[19] See casebook at page 139 at paragraph 99
In the context of these passages, it is asserted by Mr Gibson that the reviewer has misdirected himself in respect of a requirement that in some way the applicant needs to substantiate or corroborate each aspect of his claim. Essentially, it is asserted that Mr Kennedy has applied a standard of proof to the applicant’s case.
Mr Kennedy summarises the applicant’s claims of mistreatment between 1994 and 2000 at the agency of the Khans and the Taliban. He points out that “there is no corroborating evidence of any of these events.”[20] In this context, Mr Kennedy goes on as follows:
“This, of course, is not particularly surprising but it does mean that I must rely completely on [the applicant’s] evidence. The task therefore is to assess the extent to which [the applicant’s] evidence is believable.”
[20] See casebook at page 135 at paragraph 74
In respect of an incident in 2003, where the applicant described his father’s house being attacked and his father being seriously injured, Mr Kennedy says as follows:
“I can find no corroboration of such an attack or of Taliban activity in Nili District at the time.”[21]
[21] See casebook at page 138 at paragraph 91
When considering the subjective elements of the applicant’s claim to have a fear of persecution, Mr Kennedy said as follows:
“In considering the subjective element I put considerable weight on [the applicant’s] actual experience as related in his arrival interview, in his RSA application, as detailed in the RSA record, his statements and in his IMR interview. However, while [the applicant’s] evidence in this regard has been generally internally consistent, as indicated above I do not accept that the events necessarily took place as related by [the applicant]. Nonetheless I accept, mainly on the basis of his statement that he holds such a fear, that [the applicant] fears returning to Afghanistan and that he therefore satisfies the subjective element of having a well-founded fear.”[22]
[22] See casebook at page 139 at paragraph 97
In the context of the applicant’s name being placed on a Taliban “blood list”, Mr Kennedy indicates that he is “not convinced” that this is the case as the “only evidence” [of it] has been attributed to information from a friend. He has not seen it directly and it is not apparent that members of his family have any direct or independent knowledge of the death warrant.”[23]
[23] See casebook at page 139 at paragraph 99
In the context of these passages, it is asserted by Mr Gibson that the reviewer has misdirected himself in respect of a requirement that in some way the applicant needs to substantiate or corroborate each aspect of his claim. Essentially, it is asserted that Mr Kennedy has applied a standard of proof to the applicant’s case.
In this regard, Mr Gibson relies on the statement of Hill J in Machmud v Minister for Immigration & Multicultural Affairs[24] namely:
“There is also the suggestion on the part of the Tribunal that there is some necessity for an applicant to the Tribunal to "substantiate" claims. If that is intended to suggest that there must be some corroboration given by an applicant, it clearly is erroneous. The word "substantiate" is defined in the Macquarie Dictionary 3rd Edition as follows "1. to establish by proof or competent evidence:... 2. to give substantial existence to. 3. To present as having substance". The ordinary English use might suggest that the Tribunal member did not regard the applicant's statement as being evidence at all but rather required some other evidence to be provided. The sense in which it is used may perhaps also suggest that the Tribunal thought that there was a need for corroboration. If corroboration were necessary there was the country information. But, be this as it may, there certainly is no necessity as a matter of law that an applicant to the Tribunal corroborate, if that is what the Tribunal meant, a statement made.”
[24] See Machmud v Minister for Immigration & Multicultural Affairs (2001) 66 ALD 98 at [16]
It is clear that the concept of onus of proof generally has no place in administrative proceedings. As such, an “applicant’s own statements and testimony constitute evidence and there is no requirement as a matter of law that the applicant provide corroboration.”[25]
[25] See MZYHT vMinister for Immigration & Citizenship [2011] FCA 659 at paragraph 43
The submission of Mr d’Assumpcao, counsel for the second respondent is that, although Mr Kennedy has alluded to the lack of corroboration of the applicant’s claims for protection in the decision, nowhere in the reasons can it be specifically found that he has stated that the applicant was required to corroborate his claims. In addition, Mr d’Assumpcao submits that no such implication can arise if the reasons, as a whole, are fairly and properly considered.
In this context, Mr d’Assumpcao relies on the following statement of Finkelstein J in Warnakulasuriya v Minister for Immigration & Multicultural Affairs:[26]
“The submission fails to recognise that one of the functions of the Tribunal is to make determinations of fact based on the evidence that is before it. In Guo, in the majority judgment at 570 it was said that "the Tribunal (is) entitled to weigh the material before it and make findings before it engaged in any consideration of whether or not (the applicant's) fear of persecution on a convention ground was well founded.": see also Wu Shan Liang at 293 per Kirby J.
This must admit of the possibility that the Tribunal will not accept the accuracy of certain "facts" unless they are corroborated in some way. The acceptance or rejection of "facts" is a matter for the Tribunal and no error of law will be demonstrated merely because the Tribunal has decided that certain evidence will not be accepted by it unless it is corroborated. Some "facts" may be so implausible that they should not be accepted. An applicant may appear to lack credibility and in that circumstance the Tribunal may not be disposed to accept his or her evidence unless that evidence corroborated by some independent source. If the Tribunal forms the view, for one reason or another, that evidence is unreliable and should be rejected unless corroborated that does not amount to an error of law. On the contrary, it suggests that the Tribunal is taking seriously its obligation to evaluate the evidence that is before it.”
[26] See Warnakulasuriya v Minister for Immigration & Multicultural Affairs [1998] FCA 336 at page 7
This passage was approved by the Full Court of the Federal Court in MZXSA v Minister for Immigration & Citizenship.[27] In that case it was noted that the function of a merits review into the refugee status was inquisitorial in nature. As such, one of its functions is to make determinations of fact, based on the evidence before it. Part of this function maybe to examine the context of and scope of particular pieces of evidence, including whether or not the evidence is corroborated. This of itself does not impose a specific burden of proof onto an applicant.
[27] See MZXSA v Minister for Immigration & Citizenship (2010) 117 ALD 441 at [91]
It is also asserted by Mr Gibson that Mr Kennedy has misdirected himself when assessing whether the applicant had a “well-founded” fear of being persecuted, if returned to Afghanistan. In particular, it is submitted that Mr Kennedy has misapplied the “real chance” test as expounded by the High Court in Chan v Minister for Immigration & Ethnic Affairs[28] in that case, Mason CJ said as follows:
“… I prefer the expression ‘a real chance’ because it clearly conveys the notion of a substantial, as distinct from a remote chance, of persecution occurring …”
[28] See Chan v Minister for Immigration & Ethnic Affairs (1989) 87 ALR 412 at 418
In Chan it was determined that a well-founded fear of persecution has both a subjective and objective element. An applicant for refugee protection must personally fear persecution but his level of fear must be based on an objective assessment of the circumstances applicable.
In Minister for Immigration & Ethnic Affairs v Guo[29] the High Court said:
“A fear is “well-founded” when there is a real substantial basis for it. As Chan shows, a substantial basis for a fear may exist even though there is far less than a fifty percent chance that the object of the fear will eventuate. But no fear can be well-founded for the purpose of the convention unless the evidence indicates a real ground for believing that the applicant for refugee status is at risk of persecution. A fear of persecution is not well-founded if it is merely assumed or if it is mere speculation.”
[29] See Minister for Immigration & Ethnic Affairs v Guo [1997] 191 CLR 559 at 572
In the present case, Mr Kennedy accepted that the applicant held a personal fear of suffering harm, if returned to Afghanistan. He then turned to consider what he described as the objective element of the applicant’s fear.
In this context, Mr Kennedy relied on country information that suggested to him that the applicant’s home province in Afghanistan was ethnically homogenous and dominated by Hazara. He accepted that the province was, at least in relative terms, a peaceful and secure one.
Although he doubted the applicant’s assertion that his name was on a Taliban “blood list”, Mr Kennedy accepted that the applicant was in a longstanding dispute with a Pashtun family; members of this family had attacked the applicant on one occasion; and the applicant’s father and brother had died. However, Mr Kennedy did not accept that the family feud involved the Taliban.
In these circumstances, Mr Kennedy found as follows:
“Given that there is no Taliban involvement, that the only attack on [the applicant] took place some fifteen years ago, that the family he claims to fear live a considerable distance from [the applicant’s] home and that [the applicant’s] mother and four siblings as well as his uncle continue to live in the village I do not accept that there is a satisfactory objective element to establish that [the applicant] has a well-founded fear.”[30]
[30] See casebook at page 140 at paragraph 103
Mr Gibson is critical of his passage and asserts that Mr Kennedy has misconceived the “real chance” test as expostulated by the High Court. Essentially, it is said that in determining that there is no satisfactory objective element to attribute a well-founded to the applicant, in this case, Mr Kennedy although he has referred to Guo’s case, has not properly considered whether there is a substantial basis for the applicant to be fearful in this case.
Conclusions on ground two
As previously stated, it is erroneous for a decision maker in administrative proceedings, particularly those dealing with refugee status, to apply or require an applicant to satisfy any onus or standard of proof. However, as such proceedings are inquisitorial in nature, the Tribunal can only be satisfied of the existence of a particular state of affairs if there is evidence or other material before it.
The issue in this matter is whether, on a fair reading of Mr Kennedy’s reasons, a departure from or breach of this principle can be inferred, although Mr Kennedy did not expressly state or openly adopt any such erroneous requirement in his reasons.[31] In this context, I must apply the well known principle that in considering Mr Kennedy’s reasons, I must read them fairly and as a whole, avoiding an over-zealous scrutiny by a mind keenly attuned to a perception of error.
[31] See MZYHT v Minister for Immigration & Citizenship & Refugee Review Tribunal [2011] FCA 659 at paragraph 47 per Dodds-Streeton J
In this context, I do not think that it can be either expressly found or inferred from Mr Kennedy’s reasons that he imposed an onus of proof on the applicant and insisted upon some form of corroboration of his account. In my view, the contrary is indicated as Mr Kennedy accepted many of the applicant’s assertions, although he categorised them as being “thin”.
In my view, this approach is consistent with Mr Kennedy accepting that the applicant’s statements, uncorroborated though they were, could constitute valid evidence of his claim for asylum status. To the contrary to Mr Gibson’s submission, this approach belies any indication that Mr Kennedy was insistent on some level of corroboration before he accepted the applicant’s claims.
In my view, Mr Kennedy provided extremely comprehensive, lengthy and detailed reasons, which dealt exhaustively with the applicant’s claims for protection. In this context, Mr Kennedy was entitled to comment that the vast majority of the applicant’s claims were uncorroborated. This comment, of itself, does not connote that he either consciously or unconsciously applied an onus on the applicant to establish his case to any legal standard.
As was said in Guo, Mr Kennedy was entitled to weigh the material before him and determine whether that evidence was unreliable and should therefore be rejected. As Finkelstein J observed in Warnakulasuriya the fact that a reviewer determines that a particular aspect of the evidence is unreliable and should be rejected, unless corroborated, does not amount to an error of law.
Mr Kennedy has not expressed the objective elements pertaining to a well-founded fear of persecution in paragraph 103 of his reasons. Although he did correctly set out the test enunciated in Guo’s case at paragraph 96. I have a general obligation to give poorly expressed statements of reasons a reading which supports validity, if this is reasonably possible.[32]
[32] See Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] 185 CLR259 at 277
Although Mr Kennedy’s expression is not felicitous, in my view, when reading the entirety of his decision, it is apparent that he did properly consider whether there was a real chance that the applicant would be subjected to harm.
It is clear to me that Mr Kennedy did turn his mind as to the future prospects of the applicant coming to harm, at the hands of the Khans. He rejected it on the basis that the Khans village was a significant distance from the applicant’s home; the attack on the applicant had occurred some fifteen years previously; and the applicant’s mother and siblings had been able to continue living in the same location.
When these matters are considered, in my view, the criticism cannot be sustained that Mr Kennedy has not made a proper assessment of the objective levels of the applicant’s fear of persecution.
In particular, it cannot be said that this aspect of the decision is either illogical or irrational and so should be rejected. In my view, the conclusion, which Mr Kennedy reached, was open to him on the evidence.[33] For these reasons, I have come to the conclusion that ground two cannot be sustained.
[33] See SZMDS v Minister for Immigration & Citizenship (2010) 240 CLR 611 at [135] per Crennan & Bell JJ
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment. It further follows that the applicant should pay the first respondent’s costs, which I assess at $5,850.00.
I certify that the preceding eighty-three (83) paragraphs are a true copy of the reasons for judgment of Brown FM
Date: 25 January 2012
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