DZAAR v Minister for Immigration
[2012] FMCA 847
•19 September 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| DZAAR v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 847 |
| MIGRATION – Judicial review – recommendation of Independent Merits Reviewer – whether reviewer considered well-founded fear of persecution – whether procedural fairness afforded – whether jurisdictional, legal or procedural error. |
| Migration Act 1958 (Cth), ss.5, 36(2), 476(1) |
| Appellant S395/2002 v Minister for Immigration & Multicultural Affairs (2003) 216 CLR 473; [2003] HCA 71 Applicants M1015/2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1309 Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1; [2003] HCA 6 SBZF v Minister for Immigration & Citizenship (2008) 104 ALD 415; [2008] FCA 1486 |
| Applicant: | DZAAR |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | BETTINA O'NEILL IN HER CAPACITY AS INDEPENDENT MERITS REVIEWER |
| File Number: | DNG 25 of 2011 |
| Judgment of: | Lucev FM |
| Hearing date: | 23 August 2011 |
| Date of Last Submission: | 23 August 2011 |
| Delivered at: | Perth |
| Delivered on: | 19 September 2012 (by telephone-link to Darwin) |
REPRESENTATION
| Counsel for the Applicant: | Ms S L Brownhill |
| Solicitors for the Applicant: | Pipers Barristers and Solicitors |
| Counsel for the Respondents: | Mr P D’Assumpcao |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PERTH |
DNG 25 of 2011
| DZAAR |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| BETTINA O'NEILL IN HER CAPACITY AS INDEPENDENT MERITS REVIEWER |
Second Respondent
REASONS FOR JUDGMENT
Application
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 1958 in respect 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” (at Court Book (“CB”) 116-158) and “IMR” respectively.
[3] Collectively “the Convention”.
Orders sought
The applicant seeks the following final orders:
1.A declaration that the recommendation of the Independent Merits Reviewer that the applicant not be recognised as a person to whom Australia has protection obligations 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 to 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 order which the Court thinks fit;
5.Costs.
Jurisdiction
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.[4]
[4] 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 (“Darabi”).
The grounds of the application
There are four particularised grounds of application, each of which is set out hereunder[5] prior to the parties’ submissions and the Court’s consideration of each ground.
[5] See paras.15 (ground 1), 33 (ground 2), 51 (ground 3) and 60 (ground 4) below.
Background
The applicant was born in Bamiyan[6] province in Afghanistan approximately 42 years ago. He is a citizen of Afghanistan of Hazara ethnicity, and is a Shia Muslim.[7]
[6] Throughout the materials the spelling “Bamiyan” and “Bamyan” appear. The Court has opted to use “Bamiyan” in these Reasons for Judgment.
[7] CB 3, 27 and 153 at paras.51-52.
On 11 April 2010, the applicant was interviewed at Christmas Island.[8]
[8] Entry interview record, CB 1-25.
On 6 June 2010, the applicant signed various forms by which he sought a Refugee Status Assessment.[9] On that date, he also signed a “Statement of Claims”. In the Statement of Claims the applicant:
a)expressed his fear of returning to Afghanistan and being killed by the Taliban because of their hatred for Hazaras and the Hazaras’ Shia beliefs;[10]
b)stated that he does not have any place to go or any support in Afghanistan, and no longer has any rights there; and
c)stated his fear that he will be killed in Afghanistan for being:
i)an infidel, as he has sought help from a Western nation, and
ii)a person sent back to report against the Afghani authorities and the Taliban.
[9] CB 26-45 (“RSA”).
[10] CB 46-48.
On 9 June 2010, the applicant participated in an interview for the purposes of the RSA.[11] On 15 July 2010 the RSA officer determined that he was not a refugee as defined in the Convention, and consequently was not a person to whom Australia owes protection obligations.[12] Essentially, the RSA Determination was based on findings that:
a)the applicant does not have a genuine fear of harm;
b)there is not a real chance of persecution occurring; and
c)the applicant’s fear of persecution because of his ethnicity, religion and imputed political opinion is not well-founded.[13]
[11] “RSA Interview”.
[12] CB 70-83 (“RSA Determination”).
[13] CB 83.
On 19 October 2010, the applicant participated in a telephone interview with his migration agent in which the RSA Determination was explained to him. The record of that telephone interview included the applicant’s responses to the RSA Determination.[14]
[14] CB 113-115.
The applicant sought an independent merits review of the RSA Determination. The IMR conducted an independent merits review of the applicant’s refugee status. The applicant’s migration agent made a written submission to the IMR on the applicant’s behalf.[15] The IMR had an oral hearing on 15 March 2011 at which the applicant and his then migration agent appeared.[16]
[15] CB 96-112.
[16] IMR Interview Transcript. The IMR Interview Transcript is Annexure C to the Affidavit of William Francis Piper, sworn 7 November 2011.
On 11 May 2011, the IMR Recommendation found that the applicant did not meet the criterion for a protection visa under s.36(2) of the Migration Act 1958, and recommended that the applicant not be recognised as a person to whom Australia has protection obligations under the Convention.[17]
[17] CB 157-158.
On 21 June 2011 the applicant applied to this Court for judicial review of the IMR Recommendation.
IMR Recommendation
The IMR Recommendation is lengthy, running to 43 pages. Having set out the relevant law and definition of “refugee” the IMR proceeded to consider the applicant’s claim and evidence. In that regard the IMR set out lengthy summaries and details of:
a)the entry interview conducted on 11 April 2010 at Christmas Island, and the information provided in protection visa form C;[18]
[18] CB 118-119.
b)the Statement of Claims made 6 June 2010;[19]
[19] CB 119-121.
c)a summary of the RSA Interview on 9 June 2010;[20]
[20] CB 121-123.
d)a summary of the applicant’s comments on the RSA Determination upon it being read to him;[21]
[21] CB 123-124.
e)submissions received from the applicant’s adviser dated 21 November 210, including specific claims and general country information on Afghanistan;[22]
[22] CB 124-129.
f)a lengthy summary of the applicant’s IMR Interview on 15 March 2011, and a note of country information on Afghanistan supplied by the applicant at the IMR Interview;[23]
[23] CB 129-133.
g)a summary of the applicant’s post-IMR Interview submissions including Afghanistan country information precis supplied by the applicant related to:
i)the fate of returned asylum seekers;
ii)the general security situation, especially as it related to clashes between the Hazaras and Kuchi nomads;
iii)Taliban extremism and brutality;
iv)Amnesty International criticism of advice given; and
v)the killing of Americans in Ghazni province;[24] and
[24] CB 133-135.
h)independent country information about Afghanistan, including extracts and summaries of:
i)the US State Department Country Report on Human Rights Practices Afghanistan 2010, published April 2011;[25]
ii)UNHCR Eligibility Guidelines for Assessing International Protection Needs of Asylum-Seekers from Afghanistan, dated 27 December 2010;[26]
iii)US State Department, 2010 Report on International Religious Freedom – Afghanistan dated 17 November 2010;[27]
iv)Australian Department of Foreign Affairs and Trade[28] 21 February 2010 cable: “Afghanistan: Situation of the Hazara Minority”;[29]
v)DFAT report dated 28 September 2010 entitled “The Hazara”;[30]
vi)an expert report by Professor William Maley entitled “On the Position of the Hazara Minority in Afghanistan” dated 17 June 2010;[31]
vii)a New York Times report dated 25 June 2010 concerning the killing of nine Hazara men in Uruzguan province;[32] and
viii)a series of seven articles in relation to Bamiyan province, and specifically security, governance and infrastructure development in that province;[33]
[25] CB 135 (“US Human Rights Report 2010”).
[26] CB 135-137 (“UNHCR Guidelines 2010”).
[27] CB 137 (“US Religious Freedom Report 2010”).
[28] “DFAT”.
[29] CB 139-141 (“DFAT February 2010 Cable”).
[30] CB 142-143 (“DFAT September 2010 Report”).
[31] CB 143-148 (“Maley Report”).
[32] CB 148-148 (“New York Times Report”).
[33] CB 149-152.
The IMR Recommendation then sets out the IMR’s “Findings and Reasons” in which the IMR found that:
a)the applicant is a national of Afghanistan, and his claim to protection should be assessed against Afghanistan as his country of nationality;[34]
[34] CB 153 at paras.51 and 55.
b)the applicant’s claims to protection were based on fear of being harmed or killed by the Taliban because he is an ethnic Hazara and a Shia Muslim by religion, and also as a failed asylum seeker from a Western country who may be targeted by reason of an imputed political opinion as a supporter of the Australian government;[35]
[35] CB 153 at para.56.
c)the applicant is a Hazara and a Shia Muslim, born in Bamiyan province in Afghanistan, and who had resided there until he was seven years old, when his father moved the family to Iran following the Russian occupation of Afghanistan;[36]
[36] CB 154 at para.58.
d)the applicant had resided illegally in Iran for 35 years and had no right to enter Iran, or reside there;[37]
[37] CB 153 at paras.52-54.
e)the applicant did not suffer any serious harm amounting to persecution when he lived in Afghanistan;[38]
[38] CB 154 at para.60.
f)he must “now give consideration to whether the claimant can return to Afghanistan and reside there without a real chance of serious harm amounting to persecution, in the reasonably foreseeable future”;[39]
[39] CB 154 at para.60.
g)Hazaras are a distinct ethnic group in Afghanistan making up approximately 9% of the population, with the majority of them living in the mountainous central region of the country known as the Hazarajat, who have in the past (and in particular in the nineteenth century) been the subject of discrimination and violence;[40]
[40] CB 154 at para.61.
h)the material consulted did not provide independent corroboration of claims that the Taliban now specifically targets Hazara Shias differentially from the population at large, outside of a targeting of some Hazaras individually for other reasons, or as part of the general insurgency;[41]
[41] CB 154-155 at para.62.
i)present discrimination against Hazaras in Afghanistan is “social discrimination” which does not amount to persecution, and since 2001 there has been “a significant lessening of such discrimination”;[42]
[42] CB 154-155 at para.62.
j)in arriving at its views as to whether the applicant faced a real chance of harm amounting to persecution, the IMR attached “particular weight” to the DFAT September 2010 Report, and gave “consideration to the concerns articulated” and to the “caution in relation to future developments” expressed in the Maley Report;[43]
[43] CB 154-155 at paras.62 and 68 (the quotes are from para.62).
k)neither the applicant’s ethnicity nor his religion mean that he faces a real chance of harm amounting to persecution by the Taliban or Pashtuns;[44]
[44] CB 154-155 at para.62.
l)despite the applicant’s statement that he no longer has any family or land in Bamiyan province, he would return to his place of origin, as it is a Hazara dominated province and the applicant may still have remote family connections there;[45]
[45] CB 155 at para.63.
m)Bamiyan province is populated almost exclusively by Hazaras and is considered one of the most secure provinces in Afghanistan;[46]
[46] CB 155 and 156 at paras.64 and 68.
n)the Taliban find it difficult to infiltrate Bamiyan province without detection because as members of the Pashtun ethnic group they stand out amongst the Hazara;[47]
[47] CB 155 at para.64.
o)there have been significant improvements for Hazara communities in Afghanistan since the Taliban lost power in 2001;[48]
p)there is no Taliban presence in Bamiyan province, although insurgents have crossed into Bamiyan province from Baghlan province to stage attacks;[49]
q)the applicant had worked in Iran as a farm labourer and tailor;[50]
r)there are limited employment opportunities for the applicant in Bamiyan province, but those limitations do not provide him with a well-founded fear of persecution for a Convention reason, and the applicant did not claim, and there was no evidence to suggest that the applicant would be denied employment for a Convention reason;[51]
s)given that he was able to save US$8000 working illegally in Iran while supporting his family, it is likely that the applicant will be able to find employment within Bamiyan province;[52]
t)the applicant does not face a real chance of serious harm amounting to persecution now or in the reasonably foreseeable future in travelling to Bamiyan province from Kabul and in living in Bamiyan province by reason of his Hazara ethnicity,[53] or by reason of his Shia religion;[54]
u)the claim that persons are targeted and persecuted by the Taliban on return to Afghanistan from a Western country was unsupported by any authoritative independent evidence; none of the documented instances of returnees being killed indicated that they were killed for the reason that they were returnees from Western countries;[55]
v)the applicant is unlikely to be identified as a failed asylum seeker from Australia given the country information as to the large amount of migration between Afghanistan and Iran and Pakistan;[56]
w)the applicant does not face a real chance of serious harm amounting to persecution now or in the reasonably foreseeable future for the reason of membership of a particular social group, namely being a failed asylum seeker/returnee from a Western country;[57] and
x)the applicant does not meet the criterion for a protection visa set out in s.36(2) of the Migration Act.[58]
[48] CB 155 at para.64.
[49] CB 155 and 156 at paras.65 and 68.
[50] CB 156 at para.66.
[51] CB 156 at para.66.
[52] CB 156 at para.66.
[53] CB 156 at para.68.
[54] CB 156 at para.69.
[55] CB 157 at para.71.
[56] CB 157 at para.71.
[57] CB 157 at para.71.
[58] CB 157 at para.73.
Ground 1
Ground 1 of the application is as follows:
1.The Independent Merits Reviewer made an error of law in failing to consider whether the applicant has a well-founded fear of persecution upon return to Afghanistan now or in the reasonably foreseeable future for the reason/s of: (a) his race as a Hazara; (b) his religion as a Shia Muslim; or (c) his imputed political opinion as a failed asylum seeker from a Western country.
Particulars
The Independent Merits Reviewer failed to consider whether the present absence of persecution of Hazaras and/or Shia Muslims by the Taliban in Afghanistan would continue in the reasonably foreseeable future.
Applicant’s submissions
The applicant submits in relation to ground 1 that:
a)the IMR made an error of law in failing to consider whether the applicant has a well-founded fear of persecution upon return to Afghanistan now or in the reasonably foreseeable future because of his:
i)race as a Hazara;
ii)religion as a Shia Muslim; or
iii)imputed political opinion as a failed asylum seeker from a Western country,
because the IMR failed to consider whether the present absence of persecution of Hazaras and Shia Muslims by the Taliban in Afghanistan would continue in the reasonably foreseeable future;
b)although the IMR stated the question as to whether the applicant could return to Afghanistan and reside there without a real chance of serious harm amounting to persecution in the reasonably foreseeable future,[59] and expressed the conclusion that he does not face a real chance of serious harm now or in the reasonably foreseeable future in living in Bamiyan province,[60] the IMR’s findings in support of the conclusion were expressed only in present terms;
c)the IMR finding that the material did not corroborate claims that the Taliban now specifically targets Hazara Shias differentially, that the Hazara do not live in fear of systematic persecution as they did under the Taliban and that currently Hazaras are not being persecuted on any consistent basis,[61] did not result in an express finding regarding the persecution of Hazara Shias by the Taliban generally, or in Bamiyan province, in the reasonably foreseeable future. The finding is lacking, in a context where:
i)the IMR referred to the targeting of Hazaras in the past, including by the Taliban until its downfall in 2001;[62]
ii)the prospect of adverse future developments as identified in the Maley Report;[63]
iii)the DFAT February 2010 Cable, set out in full in the IMR Recommendation, stated that the political and security situation in Afghanistan was fluid and that the current situation (where Hazaras enjoyed freedom from fear of persecution) might not last indefinitely;[64] and
iv)the Maley Report referred to a general deterioration in the security situation in Afghanistan, to past experiences of optimism for Hazaras in Afghanistan which had been wrong, and warned against the drawing of premature conclusions about the Afghan situation;[65] and
d)the IMR failed to consider whether or not the present situation in Afghanistan will continue into the foreseeable future, despite evidence before her that it may not. There was evidence before the IMR of a generally deteriorating security situation in Afghanistan and extensive evidence of persecution of Hazara Shias in the past. The focus of the issue before the IMR must be the risk of persecution in the future, at least from the time of returning a person to their country of nationality. In assessing what might happen in the future, it is appropriate to have regard to what has happened in the past.[66] By not considering whether the present situation would continue into the foreseeable future, bearing in mind what occurred in the past,[67] the IMR failed to ask the right question, namely whether there is a real chance that the applicant will be subject to persecution if he were returned to Afghanistan, and thereby made an error of law.[68]
[59] CB 154 at para.60.
[60] CB 156 at paras.68-69.
[61] CB 154-155 at para.62.
[62] CB 154 at para.61.
[63] CB 154-155 at para.62.
[64] CB 140 at para.38, at para.6 of the DFAT February 2010 Cable.
[65] CB 143-148 at para.40, and particularly CB 148.
[66] Citing Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559 at 575 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ (“Guo”).
[67] IMR Interview Transcript, p.36.
[68] Citing SBZF v Minister for Immigration & Citizenship (2008) 104 ALD 415 at 423-424 per Lander J; [2008] FCA 1486 at paras.49-52 per Lander J (“SBZF”), where the Refugee Review Tribunal found that the applicant had not been the subject of persecution in her country of origin in the past, but failed to consider whether she would be the subject of persecution in the future.
Minister’s submissions
The Minister submits with respect to ground 1 that:
a)it is well established that in determining whether the applicant had a well-founded fear of persecution, the IMR had to form an opinion as to what was likely to occur if the applicant was returned to Afghanistan;[69]
[69] Citing Guo at 574 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ.
b)in particular, the IMR said:
The claimant has not claimed to have suffered serious harm amounting to persecution in the past when he lived in Afghanistan and I find that he has not suffered such harm in the past. I must now give consideration to whether claimant can return to Afghanistan and reside there without a real chance of serious harm amounting to persecution, in the reasonably foreseeable future.[70]
[70] CB 154 at para.60.
c)the IMR had regard to a wide variety of country information in considering whether the applicant would suffer harm now or in the reasonably foreseeable future for the reasons claimed, but was not satisfied, on a comprehensive assessment of the country information, that the applicant would suffer harm for reasons of his race, religion or as a failed asylum seeker (described as an imputed political opinion and membership of a particular social group);[71]
[71] CB 125 at para.2.4, CB 153 at para.56 and CB 154-157 at paras.60-71.
d)the IMR went on to:
i)consider the country information in relation to Afghanistan,[72]
ii)express herself as not being satisfied that the Taliban now targets Hazara Shias;[73] and
iii)give consideration to the concerns articulated in the Maley Report and the caution in relation to future developments;[74]
e)the IMR plainly determined what was likely to occur in the future, and therefore had a rational basis[75] to say:
I do not accept that the claimant’s ethnicity and religion by themselves means that he faces a real chance of harm amounting to persecution by the Taliban or Pashtuns.[76]
f)ground 1 is without any substance and must fail.
[72] CB 154 at para.61.
[73] CB 154-155 at para.62.
[74] CB 154-155 at para.62.
[75] Citing Guo at 574-575 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ.
[76] CB 154-155 at para.62.
Consideration
The applicable principles in relation to assessment of a claim to be a refugee, and whether there is a well-founded fear of persecution if the person is returned to their country of nationality are set out in a well-known passage in Appellant S395/2002 v Minister for Immigration & Multicultural Affairs[77] as follows:
72 It is well established that the Convention definition of "refugee" has subjective and objective elements. Does the applicant fear persecution for a Convention reason (the subjective element)? Is that fear well founded (the objective element)? The fear will be well founded if there is a real chance that the applicant would face persecution for a Convention reason if the applicant returned to the country of nationality.
73 The objective element requires the decision-maker to decide what may happen if the applicant returns to the country of nationality. That is an inquiry which requires close consideration of the situation of the particular applicant. It requires identification of the relevant Convention reasons that the applicant has for fearing persecution. It is necessary, therefore, to identify the "reasons of race, religion, nationality, membership of a particular social group or political opinion" that are engaged.
74 Because the question requires prediction of what may happen, it is often instructive to examine what has happened to an applicant when living in the country of nationality. If an applicant has been persecuted for a Convention reason, there will be cases in which it will be possible, even easy, to conclude that there is a real chance of repetition of that persecution if the applicant returns to that country. Yet absence of past persecution does not deny that there is a real chance of future persecution.
75 Again, because the question requires prediction, a decision-maker will often find it useful to consider how persons like the applicant have been, or are being, treated in the applicant's country of nationality. That is useful because it may assist in predicting what may happen if the applicant returns to the country of nationality. But, as with any reasoning of that kind, the critical question is how similar are the cases that are being compared.
76 Because reasoning of the kinds just described is often employed, it is perhaps inevitable that those, like the Tribunal, who must deal with large numbers of decisions about who is a refugee, will attempt to classify cases. There are dangers in creating and applying a scheme for classifying claims to protection. Those dangers are greatest if the classes are few and rigidly defined. But whatever scheme is devised, classification carries the risk that the individual and distinctive features of a claim are put aside in favour of other, more general features which define the chosen class.
77 Further, there is a serious risk of inverting the proper order of inquiry by arguing from an a priori classification given to the applicant, or the applicant's claim, to a conclusion about what may happen to the applicant if he or she returns to the country of nationality, without giving proper attention to the accuracy or applicability of the class chosen. That is, there is a real risk of assuming (wrongly) that a particular applicant will be treated in the same way as others of that race, religion, social class or political view are treated in that country. It would, for example, be wrong to argue from a premise like "homosexuality is generally ignored in Bangladesh" to a conclusion that "this applicant (a homosexual) will not be persecuted on account of his sexuality", without paying close attention to the effect of the qualification of the premise provided by the word "generally". Thus it would be necessary in the example given to consider whether, on return to Bangladesh, the applicant would stand apart from other homosexuals in that country for any reason.[78]
[77] (2003) 216 CLR 473; [2003] HCA 71 (“S395”).
[78] S395 CLR at 498-500 per Gummow and Hayne JJ; HCA at paras.72-77 per Gummow and Hayne JJ.
In SBZF the question of the proper consideration of whether there was a real chance of serious harm in the reasonably foreseeable future arose on appeal from a judgment of this Court. This Court had said that the exercise of making findings as to the charge of future harm was otiose because past events had not led to persecution. The Federal Court summarised the position thus:
25 The Federal Magistrate agreed that the Tribunal had dismissed the question of future persecution quite summarily. However, His Honour pointed out that no evidence had been produced to indicate that the appellant would behave any differently in the future to how she had in the past, and concluded:
"It would in those circumstances be an otiose exercise, having reached conclusions about past activities not having led to persecution, for the Tribunal to expressly posit such activities happening in the future and then make findings - based on a prognostication of future events - when it was given no basis for considering that future activities would be any different or the response of the authorities any more persecutory. In these circumstances, the Tribunal can only find, as here, that no chance of serious harm on account of such activities will occur in the reasonably foreseeable future."[79]
[79] SBZF ALD at 420 per Lander J; FCA at para.25 per Lander J.
It can thus be seen that the Federal Court was dealing with circumstances where the Refugee Review Tribunal had dismissed the issue of future persecution summarily, and this Court held that there was no reason, in the circumstances of the case, to deal with the possibility of past activities occurring again in the future.
The Federal Court found in SBZF that this was a failure to address the question of a real chance of serious harm in the future amounting to persecution for a Convention reason. The Federal Court said as follows:
49 First, in my opinion, contrary to the finding of the Federal Magistrate, the Tribunal did not address the appropriate question in considering the appellant's claims. The question that the Tribunal needed to consider was whether the appellant had a well-founded fear of persecution. This required the Tribunal to consider whether if the appellant were to return to her country of origin, in this case China, there would be a real chance she would be persecuted for a Convention reason.
50 It is, of course, relevant in determining whether there is a real chance that an event will occur for a particular reason in the future to consider whether similar events have or have not occurred in the past for the same or similar reasons. It was appropriate, therefore, for the Tribunal to determine whether or not the appellant herself had been subject to persecutory conduct for a Convention reason: Guo 191 CLR 559.
51 However, a finding that she has not previously been subject to persecution for a Convention reason does not necessarily answer the question as to whether there is a real chance that she will be subject to persecutory conduct in the future if she were to return to China for a Convention reason: Appellant S395/2002 216 CLR 473 per Gummow and Hayne JJ at 499.
52 In this case, the Tribunal addressed the question of past conduct but did not consider the question of future conduct. That specific question had to be addressed and answered. In that sense, it did not exercise the jurisdiction which is bestowed upon it under the Act.[80]
[80] SBZF ALD at 423-424 per Lander J; FCA at paras.49-52 per Lander J.
What then did the IMR do in this case?
Firstly, the IMR observed that it is “[e]ssential in the Convention definition … that there must be causal connection between the claimed fear of persecution and the ground suggested to give rise to that fear”.[81] The IMR then, having referred to the applicant not having suffered harm in the past in Afghanistan, formulates the correct question, as follows:
I must now give consideration to whether the claimant can return to Afghanistan and reside there without a real chance of serious harm amounting to persecution, in the reasonably foreseeable future.[82]
[81] CB 152 at para.49. See S395 CLR at 499 per Gummow and Hayne JJ; HCA at paras.73-74 per Gummow and Hayne JJ; SBZF ALD at 423 per Lander J; FCA at para.51 per Lander J.
[82] CB 154 at para.60. It is implicit from a proper reading of the IMR Recommendation that the persecution must be for a Convention reason. See CB 152 at para.49.
The IMR then deals with aspects of the ethnographic and historical treatment of Hazaras in Afghanistan.[83] The IMR then refers to the “material consulted”, and in context that can only mean the country information to which the IMR has referred, before making findings that:
a)there is no independent corroboration of the claim that the Taliban “now” specifically targets Hazara Shias differently from the population at large; or
b)the social discrimination referred to in the US Human Rights Report 2010 is so severe as to amount to “persecution”.[84]
[83] CB 154 at para.61.
[84] CB 154 at para.62.
The IMR then indicates that it has given particular weight to the DFAT September 2010 Report, and also “given consideration to the concerns articulated” in the Maley Report, and the “caution in relation to future development” expressed in the Maley Report.[85] The Maley Report extracts quoted in the IMR Recommendation:
a)warn against “the drawing of premature conclusions about the Afghan situation”;[86]
b)indicate that the general situation in Afghanistan “remains profoundly threatening”;[87]
c)opine that “the consolidation of new political structures takes many years” in “a country [which] has suffered as much as Afghanistan”;[88]
d)state that the longer term implications of electoral fraud in Afghanistan in 2009 may be “catastrophic”;[89]
e)state that reference to “durable security” in Hazara areas of Afghanistan was contradicted by recent Australian travel advice and the massacre of eleven Hazaras in southern Afghanistan in June 2010;[90]
f)state that there were signs that the Taliban were seeking to push into Hazara-settled areas in the central region of Afghanistan;[91]
g)refer to the possibility of Afghani government “reconciliation” with the Taliban leading to Taliban domination in some provinces;[92] and
h)state that “When countries have experienced massive disruption, it may take years before one can be sure that it is safe for refugees to return”.[93]
[85] CB 154 at para.62.
[86] CB 143 at para.40.
[87] CB 143 at para.40.
[88] CB 144 at para.40.
[89] CB 144 at para.40.
[90] CB 145-146 at para.40.
[91] CB 147 at para.40.
[92] CB 147 at para.40.
[93] CB 148 at para.40.
Insofar as the Maley Report “cautions in relation to future developments” about Hazaras in Afghanistan, the IMR expressly stated that that had been “given consideration”.[94]
[94] CB 154 at para.62.
In a DFAT October 2010 Report relating to Bamiyan province,[95] which is where the applicant was born and would seemingly return to, it was said:
1.Bamyan is widely regarded as secure … Bamyan’s security is community-based and therefore highly-resilient; the Taliban would find it difficult to infiltrate the Hazara-majority province without detection. Interlocutors did not believe that any ethnic group was at greater risk than others within Bamyan, and saw no protection issue for returnees. But travel into and out of Bamyan can be dangerous, and has become more challenging in the context of a broader deterioration in security in Afghanistan.
Individuals associated with the Government and international community may be at greater risk than others on the road.
2.Interlocutors agreed that Bamyan is moving in a positive direction in terms of development, governance and security. Development is increasingly visible, with improving levels of investment and several major infrastructure projects planned over the next two to three years …
3.… Limited economic opportunities within Bamyan are encouraging outward migration, and the inhibiting the number of returning refugees. Returns, predominantly from Iran and Pakistan, have been on the decline since 2005, with most opting to live in cities outside the province. ….[96]
[95] CB 152 at para.48.
[96] CB 152 at para.48.
Having observed that the applicant’s ethnicity and religion did not mean that he faced a real chance of harm amounting to persecution from the Taliban or the Pashtuns,[97] the IMR went on to observe that:
a)the applicant would “return to his place of origin”, namely, Bamiyan;[98]
b)there was no evidence that the applicant “would be denied employment for any Convention related reason”;[99] and
c)it was likely that the applicant “will be able to find employment” in Bamiyan province,[100]
each of which is an observation which pertains to a future event.
[97] CB 155 at para.62.
[98] CB 155 at para.63.
[99] CB 156 at para.66.
[100] CB 156 at para.66.
The IMR found that Bamiyan “is widely regarded as secure”[101] and that it is a province “where the majority of the population practice the Shia religion”.[102] The IMR concluded that the applicant faced no real chance of serious harm amounting to persecution, “now or in the reasonably foreseeable future”.[103] Having set out the claim for alleged persecution of failed asylum seekers on their return to Afghanistan, the IMR examined the available evidence, which she found did not support an assertion that failed asylum seekers returning to Afghanistan from Western countries were targeted and persecuted by the Taliban upon return to Afghanistan. Therefore, the IMR concluded that there was not a real chance of persecution “now or in the foreseeable future” for a Convention reason of membership of a particular social group, namely, failed asylum seekers/returnees from a Western country.[104]
[101] CB 156 at para.68.
[102] CB 156 at para.69
[103] CB 156 at paras.68 and 69 (at para.68 the word “future” has been left out).
[104] CB 157 at para.71.
The IMR “considered all integers” of the applicant’s claim “both singularly and cumulatively and based on the information available” and concluded that the applicant had no well-founded fear of persecution “now or in the reasonably foreseeable future”.[105] From the juxtaposition of “now” with the phrase “the reasonably foreseeable future” separated by the disjunctive “or”, it is further apparent that the IMR turned her mind to the future.
[105] CB 157 at para.72.
This is a case where the IMR understood that she must look to see if there is a real chance of the applicant suffering serious harm amounting to persecution for a Convention reason in the reasonably foreseeable future, and considers the Maley Report caution as to future developments, before arriving at a conclusion with respect to whether the applicant has a real chance of harm on the basis of ethnicity, religion or as a failed asylum seeker/returnee. It is not appropriate to analyse the reasons of the IMR minutely and with a focus upon perceiving error,[106] and read in context, and read without an eye seeking error, it is reasonably clear that the IMR is considering the real chance of serious harm amounting to persecution for a Convention reason in the reasonably foreseeable future.
[106] Minister for Immigration & Citizenship v SZMDS & Anor (2010) 240 CLR 611 at 623-624 per Gummow ACJ and Kiefel J, at 634, footnote 73 per Heydon J; [2010] HCA 16 at para.35 per Gummow ACJ and Kiefel J, at footnote 73 per Heydon J; Minister for Immigration & Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh & Gummow JJ (“Wu Shan Liang”); Re Minister for Immigration & Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57 at 67 per Gleeson CJ and Hayne J; [2001] HCA 22 at para.23 per Gleeson CJ and Hayne J.
In circumstances where the IMR:
a)asked the correct question, including reference to “persecution in the reasonably foreseeable future”;[107]
b)said that she had considered country information, including country information which expresses “caution in relation to future developments”[108] and expressly sets out that material in the IMR Recommendation;[109]
c)referred in arriving at findings to events which would take place in the future upon the applicant’s return to Afghanistan;[110] and
d)concluded that neither “now or in the reasonably foreseeable future” is there a real chance of serious harm for a Convention related reason being suffered by the applicant,
it cannot be concluded that the IMR failed to consider whether the present absence of persecution of Hazaras and Shia Muslims by the Taliban in Afghanistan would continue in the reasonably foreseeable future. Indeed, the IMR did consider whether the applicant might be persecuted in the reasonably foreseeable future for a Convention related reason. Ground 1 is therefore not made out.
[107] CB 154 at para.60.
[108] CB 154 at para.62.
[109] CB 143-148 at para.40.
[110] See para.28 above.
Ground 2
Ground 2 of the application is as follows:
2.The Independent Merits Reviewer made an error of law in failing to consider whether the applicant has a well-founded fear of persecution upon return to Afghanistan now or in the reasonably foreseeable future for the reason/s of: (a) his race as a Hazara; (b) his religion as a Shi’a Muslin; or (c) his imputed political opinion as a failed asylum seeker from a Western country.
Particulars
The Independent Merits Reviewer failed to take into account the applicant’s individual circumstances of:
(a)not having lived in or visited Afghanistan for 35 years, after having left Afghanistan as a young child; and
(b)not having any extended family network or any social or community network in Afghanistan,
and failed to consider whether these circumstances would bear upon the applicant’s fear of persecution upon return to Afghanistan.
Applicant’s submissions
In relation to ground 2 the applicant submits as follows:
a)the IMR made an error of law in failing to consider whether the applicant has a well-founded fear of persecution upon return to Afghanistan now or in the reasonably foreseeable future by reason of his:
i)race as a Hazara;
ii)religion as a Shia Muslim; or
iii)imputed political opinion as a failed asylum seeker from a Western country,
because the IMR failed to take into account the applicant’s individual circumstances of:
iv)not having lived in or visited Afghanistan for 35 years, after having left Afghanistan as a young child; and
v)not having any extended family network or any social or community network in Afghanistan,
and the IMR failed to consider whether and, if so, how, these circumstances would bear upon the applicant’s fear of persecution upon return to Afghanistan;
b)the applicant has lived in Iran for 35 years, having left Afghanistan, with his parents and siblings at about the age of seven, never to return.[111] The applicant said:
[111] IMR Interview Transcript, p.12.
“I am like a stranger to Afghanistan. I have no way of making a life for myself and my family there…”.[112]
[112] CB 114.
This has been consistently put by the applicant throughout his interviews and submissions.[113] Specifically, the applicant stated that his grandparents died in Afghanistan before he was born; his paternal uncles went to Iran and Pakistan but they are now deceased; and his aunt was in Iran but is also now deceased.[114] Further, the applicant’s wife’s family had lived in Iran for a long time and none of them had returned to Afghanistan;[115]
c)the applicant submitted that extended family and community networks constitute both protection from persecution and coping mechanisms, and are depended on by Afghanis for safety and economic survival;[116]
d)the IMR found that “there may still be remote family connections” in Bamiyan province.[117] The IMR also found that the applicant would be able to find employment in Bamiyan province.[118] However, the IMR did not specifically address or make findings about the threat of persecution to the applicant in light of his particular circumstances of having been absent from the country for 35 years, and not having any extended family there (aside from possible remote family connections). For example, the IMR accepted that “social discrimination” continued against Shia Hazaras generally, and found it was not so severe as to amount to persecution, but did not consider whether the absence of extended family and community networks for the applicant made it more likely that he would suffer such discrimination, or would do so to a greater extent, than a person returning to Afghanistan after an absence of only a few years;[119]
e)the IMR set out an extract from the UNHCR Guidelines 2010 which provides that internal flight was considered a reasonable alternative to protection in another country:
… where protection is available from the individual’s own extended family, community or tribe in the area of prospective relocation. Single males and nuclear family units may, in certain circumstances, subsist without family and community support in urban and semi-urban areas with established infrastructure and under effective Government control. Given the breakdown in the traditional social fabric of the country caused by decades of war, massive refugee flows, and growing internal migration to urban areas, a case-by-case analysis will, nevertheless, be necessary.[120]
f)the above extract from the UNHCR Guidelines 2010 demonstrates that the absence of extended family and community support are relevant matters to be considered. These circumstances are particular to the applicant and would distinguish him from other Hazara Shias repatriating to Afghanistan from Iran and Pakistan. They would bear heavily on the chance of persecution of the applicant occurring; and
g)the IMR failed to consider a critical aspect of the applicant’s particular circumstances and its impact upon his chance of persecution. This constitutes a failure to ask the right question, namely whether there is a real chance that the applicant will be subject to persecution if he were returned to Afghanistan, and is an error of law.
[113] See CB 47-48, 98 (at para.1.9), 115 (at para.6), IMR Interview Transcript, pp.28-29, 31-32 and 36-37.
[114] CB 129-131 at para.26.
[115] CB 129-131 at para.26.
[116] CB 128 at para.20.
[117] CB 155 at para.63.
[118] CB 156 at para.66.
[119] CB 154-155 at para.62.
[120] CB 135-136 at para.30.
Minister’s submissions
The Minister submits as follows in relation to ground 2:
a)to suggest that the IMR did not have regard to the applicant’s circumstances overlooks the express references to the findings made by the IMR;[121]
b)the IMR said:
Whether or not an individual's fear is well founded must be assessed in the context of the situation in Afghanistan, taking into account the personal profile, experiences and activities of the individual which could put him at risk.[122]
c)the IMR appreciated, and accepted, that the applicant left Afghanistan at the age of seven and had lived and worked in Iran for 35 years;[123]
d)the IMR believed that the applicant would return to his place of origin, stating that “there may still be remote family connections there, albeit no longer any family land”,[124] a finding of fact which was open to the IMR to make;
e)the IMR found that the applicant did not advance a case of persecution for a denial of employment in Bamiyan for a Convention reason,[125] and was not bound to consider a claim not expressly made or which does not otherwise squarely arise from the material;[126] and
f)the abovementioned findings clearly demonstrate that the IMR had regard to the applicant’s particular circumstances.
[121] CB 153-156 at paras.52, 57-59, 63, and more particularly at para.66.
[122] CB 153 at para.57.
[123] CB 154 at paras.58-59.
[124] CB 155 at para.63.
[125] CB 156 at para.66.
[126] Citing Dranichnikov v Minister for Immigration & Multicultural Affairs (2003) 77 ALRJ 1088; [2003] HCA 26; NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 144 FCR 1; [2004] FCAFC 263.
Consideration
The applicant did claim that:
a)he could not return to Afghanistan as he did “not have any support” there;[127]
[127] CB 47.
b)Afghanistan was the same as Iran in that he had “no rights there and no identity there”;[128]
c)he left Afghanistan at six (or seven) years of age and “no longer has any rights there”;[129]
d)he could not return to Afghanistan as he “has no family” there;[130]
e)specifically with respect to a return to Bamiyan, that he had “not lived there for 34 years”, and that he had “no family and friends” there;[131] and
f)in the IMR Interview:
i)in response to a question as to whether he could live in Bamiyan which was an Hazara area and where Hazaras are in the majority, he responded that he was “little” when he left Bamiyan, did not know anybody there, did not have family members there, and did not have a house to live in. Additionally he said that a lot of people had left the area because it was dangerous;[132]
ii)admitted that he chose to leave Iran by travelling through Afghanistan, and travelled quite a long distance through Afghanistan, and when asked why he would take that risk if there was a real fear that something would happen to him, he indicated that it was the smugglers “job” to take him through Afghanistan, and that on his own he “would never put a foot in Afghanistan because I’m scared”;[133]
iii)said he had been away from Afghanistan for many years, did not know the way of living, did not know any people there, had no rights to live in Afghanistan, and did not know where he belonged;[134] and
iv)said that because he has not lived in Afghanistan for 34 or 35 years, and is an Hazara Shia, he would attract the attention of the Taliban if he was returned to Afghanistan, and could not be protected by the State.[135]
[128] CB 48.
[129] CB 48.
[130] CB 98, at para.1.9 of the applicant’s submission to the IMR.
[131] CB 115.
[132] IMR Interview Transcript, p.28.
[133] IMR Interview Transcript, pp.28-29 (the quotes are from p.29).
[134] IMR Interview Transcript, p.32.
[135] IMR Interview Transcript, p.36.
It is clear that the IMR understood that the applicant:
a)left Afghanistan 34-35 years ago;[136]
b)claimed not to have family in or know anyone in Afghanistan, or Bamiyan province in particular;[137]
c)claimed that his relatives, and in particular his grandparents and uncles and aunts, had died or no longer lived in Afghanistan;[138] and
d)claimed that no member of his family had returned to Afghanistan once they had left.[139]
[136] CB 130.
[137] CB 131.
[138] CB 131.
[139] CB 131.
Equally, it is clear that the IMR, at the IMR Interview:
a)inquired whether the applicant could return to Bamiyan province where his family was originally from, and where there was a Hazara majority; and
b)put country information to the applicant which indicated that Bamiyan province was safe for a Hazara Shia to live in, to which the applicant again responded that he left Afghanistan when he was young, and did not have any family or land, and that many people had fled from Bamiyan because it was dangerous.[140]
[140] CB 132.
Critically, the IMR put to the applicant that he did not fear persecution in Afghanistan, evidenced by the fact that he had chosen to leave Iran, to come to Australia, and in so doing had travelled through Afghanistan, to which the applicant responded that it was the smugglers role to get him through Afghanistan, and that that is what he did.[141]
[141] CB 132.
The country information before the IMR included the UNHCR Guidelines 2010 which included reference to:
a)protection being available for returnees not just from family but also from community or tribe in the area of prospective relocation;[142] and
b)where the members of an ethnic group were a local majority, that local majority was not likely to be at risk of persecution,[143]
and indicated that Bamiyan province was secure, particularly for Hazara Shias living there.[144]
[142] CB 136.
[143] CB 138.
[144] CB 149-152.
In the circumstances, the IMR has adopted the case-by-case approach suggested by the UNHCR Guidelines 2010.
The IMR dealt specifically with the applicant’s personal circumstances. The IMR observed that:
The claimant was born and lived in Bamiyan Province until he was 7. He states that he no longer has any family or land in Bamiyan. Notwithstanding this I believe that the claimant would return to his place of origin as it is a Hazara dominated province and there may still be remote family connections there, albeit no longer any family land.[145]
[145] CB 155 at para.63.
The IMR observed that the applicant had said that his brother had spoken to people from his village in Bamiyan, and went on to note the submission that he would have to pass through Taliban controlled areas to get to Bamiyan if he returned to Afghanistan.[146]
[146] CB 155 at para.63.
The IMR went on to find that Bamiyan province was “one of the most secure provinces in Afghanistan”[147] and that it was “widely regarded as secure and a safe area for its Hazara population.”[148]
[147] CB 155 at para.64.
[148] CB 155 at para.65.
The IMR went on to deal with the fact that the applicant had worked both as a farm labourer and a tailor, that is both in the country and the city, and found that there was no evidence to suggest he would be denied employment for any Convention related reason and that it was “likely” that the applicant would be able to find employment within Bamiyan province.[149] That finding that the applicant would be able to find employment within Bamiyan province dispenses with the argument put up by the applicant that he would have to travel in to and out of Bamiyan province to obtain employment. Even if he did, the IMR found that whilst travel in to and out of Bamiyan was dangerous, it was dangerous because of the general security situation in Afghanistan, and particularly for individuals associated with or perceived to be associated with the government or the international community.[150] In relation to the killing of Hazaras referred to by the applicant the IMR noted that they were killed because of acts undertaken in defiance of specific Taliban warnings, not because the persons killed were Hazara and Shia.[151] The IMR also considered whether the country information indicated that the applicant was likely to suffer harm as a consequence of being a Shia or a returnee, and concluded that the country information and evidence before the IMR indicated that there was no real chance that the applicant would suffer persecution now or in the reasonably foreseeable future for those reasons.[152]
[149] CB 156 at para.66.
[150] CB 156 at para.67.
[151] CB 156-157 at para.70.
[152] CB 156-157 at paras.68-69 and 71.
It is also apparent from the IMR Recommendation and the IMR Interview Transcript that the IMR knew that the applicant:
a)spoke Hazaragi (because having spoken a few words of Persian the applicant was offered a Persian interpreter but rejected it on the basis that he was comfortable speaking Hazaragi);[153] and
b)had travelled to Australia via Afghanistan after leaving Iran.[154]
[153] CB 130 at para.26.
[154] CB 131-132 at para.26.
In the Court’s view the IMR therefore considered:
a)the applicant’s individual circumstances;
b)the particular circumstances as they pertained to persons such as the applicant, namely a Hazara Shia returning to Bamiyan province; and
c)the applicant as a returnee Hazara Shia in the context of the general security situation in Afghanistan, but specifically in relation to his security in Bamiyan province.
The claims made by the applicant were therefore known and considered in relation to the applicant’s individual circumstances,[155] but also, in the Court’s view, at a greater level of generality in relation to the overall security situation in relation to Hazara Shias in Bamiyan province and travelling in to and out of Bamiyan province which were matters, particularly in relation to security within Bamiyan province for Hazara Shias, which meant that at that level of generality a Hazara Shia returning to Bamiyan could not have a well-founded fear of persecution in any event.
[155] S395 CLR at 495 per McHugh and Kirby JJ; HCA at paras.58-59 per McHugh and Kirby JJ.
The IMR dealt with the claims that were actually made by the applicant. It must be noted that those claims were themselves relatively general, and although considered individually by the IMR, were probably circumstances which would apply to many Hazara Shias returning to Bamiyan province in Afghanistan.
For all of the above reasons ground 2 is not made out. To determine otherwise would be to specifically seek to find error in the IMR Recommendation for error’s sake, contrary to the dictates of the Wu Shan Liang line of authority.
Ground 3
Ground 3 of the application is as follows:
3.The Independent Merits Reviewer did not afford procedural fairness to the applicant.
Particulars
The Independent Merits Reviewer did not provide the applicant with the opportunity to address the proposition that he would be able to find employment in Bamiyan province, and found that the applicant would live and work there upon return to Afghanistan. These findings are integral to the finding made by the Independent Merits Reviewer that the applicant did not have a well-founded fear of Convention-related persecution.
Applicant’s submissions
The applicant submits as follows in relation to ground 3:
a)the IMR did not provide the applicant with the opportunity to address the proposition that he would be able to find employment in Bamiyan province, before finding that the applicant would live and work there upon return to Afghanistan. Those findings are integral to the finding made by the IMR that the applicant did not have a well-founded fear of Convention related persecution;
b)it was not put to the applicant that he would be able to find employment within Bamiyan province despite the limited economic opportunities there, as found by the IMR.[156] The IMR reached her conclusion that the applicant would find employment in Bamiyan province on the basis that he saved US$8000 while working in Iran illegally and supporting his family. This was not put to the applicant either. The applicant had stated that he would have to travel outside of Bamiyan province to obtain food and earn an income;[157]
c)it is a requirement of procedural fairness that the IMR put before an applicant the substance of matters that the IMR knew of and considered might bear on whether to accept the applicant’s claims.[158] Generally, the obligation is to have the applicant’s mind directed to the core or critical issues on which the decision will turn,[159] but, ultimately, the question is one of fairness;[160]
d)whether the applicant could find employment in Bamiyan province underpinned both the IMR Recommendation that the applicant would live in Bamiyan province if returned to Afghanistan, and the IMR’s rejection of the applicant’s claim that he would face persecution when travelling outside Bamiyan province;[161] and
e)it is accepted that the duty to provide procedural fairness is not a requirement that the decision-maker invite comment upon its thought processes on the way to its decision.[162] However, there was a clear failure to provide the applicant with the opportunity to respond to the critical proposition that he would be able to find employment in Bamiyan province.
[156] CB 156 at para.66.
[157] CB 129-133 at para.26; IMR Interview Transcript, pp.34 and 37.
[158] Citing Plaintiff M61 CLR at 356-357 per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; HCA at para.91 per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ.
[159] Citing Darabi FLR at 318-320 per Nicholls FM; FMCA at paras.91-101 per Nicholls FM.
[160] Citing Darabi FLR at 319 per Nicholls FM; FMCA at para.95 per Nicholls FM citing VHAP of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 80 ALD 559 at 566 per Allsop J; [2004] FCAFC 82 at paras.27-28 per Allsop J.
[161] CB 156 at para.67.
[162] Citing WAGU v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 912 at para.36 per French J.
Minister’s submissions
The Minister submits as follows in relation to ground 3:
a)the applicant’s argument in ground 3 presupposes that the applicant had claimed to fear serious harm by reason of significant economic hardship that threatens the person’s capacity to subsist. The IMR did not do so expressly, and such a claim was not, in the Minister’s submission, apparent on the face of the material. More particularly, the claim was not advanced under any of the branches of race, religion or imputed political opinion; and
b)the contentions put by the applicant in ground 3 are self-evidently contentions that depend upon the Court reviewing the merits of the IMR Recommendation, rather than the process by which the IMR arrived at the conclusion, which is not permissible on judicial review.[163]
[163] Citing Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 35-36 per Brennan J.
Consideration
The IMR was aware that the common law rules of natural justice applied to the conduct of an independent merits review.[164]
[164] CB 117 at para.5.
The IMR also took into account information including that available to the RSA.[165] In that regard it is relevant to note that the material before the RSA included the DFAT February 2010 Cable.[166] It is also relevant to note that part of the reason that the RSA Determination found that the applicant could return to Bamiyan was “due to improved security employment opportunities and the stability of the Province”.[167] The DFAT February 2010 Cable summarises the position of Afghan Hazaras in the first paragraph as follows:
Afghanistan’s Hazaras do not live in fear of violence or systematic persecution as they did under Taliban rule. And the current period is perhaps the best in several hundred years for Hazaras in terms of personal and community freedoms, opportunities and human security. However, they claim to face social, economic and political barriers to upward mobility and community development. The human rights gains Hazaras have experienced in recent years are very real but they wonder if it will continue.[168]
[165] CB 117 at para.2.
[166] CB 72: RSA Determination, Part 4, para.5.
[167] CB 82.
[168] CB 139 at para.38.
The DFAT February 2010 Cable was country information that the applicant’s representatives had had regard to.[169] When the passage set out above was specifically put to the applicant he disagreed saying that 2010 was “the most dangerous time” in Afghanistan.[170]
[169] IMR Interview Transcript, p.28, lines 30-36.
[170] IMR Interview Transcript, p.31.
The IMR went on to put it to the applicant that Hazaras were not discriminated against in a manner amounting to persecution. The applicant indicated that they were and that part of the difficulty was that he could not stay in Bamiyan because “you need to work and have income”.[171] On this basis, it seems reasonably apparent that at least the applicant understood that one of the issues being put to him related to the question of his ability to earn an income (that is to obtain employment) if he returned to Bamiyan province. The Court is of the view therefore that the IMR not only provided the applicant with an opportunity to deal with and address the proposition of employment in Bamiyan province, but that the applicant responded to that opportunity in terms.
[171] IMR Interview Transcript, p.34.
In any event, the suggestion that the employment finding was integral to the ultimate finding that there was no well-founded fear of Convention related persecution if the applicant returned to Bamiyan cannot be sustained because:
a)if the applicant did obtain employment in Bamiyan there was no need to travel outside of Bamiyan and therefore the reason for the fear of persecution raised in relation to travel outside of Bamiyan to earn income (or obtain employment) does not arise; and
b)even if the applicant did have to travel outside of Bamiyan, the danger of travel was a danger arising from the general security situation in Afghanistan and not a risk associated with either the applicant’s ethnicity or religion. And, as the IMR found, a well-founded fear of persecution for a Convention related reason does not arise merely because of general insecurity and threats to secure and of safe travel within Afghanistan.[172]
Thus, even if it could be said, which in the Court’s view it cannot, that the applicant had been denied procedural fairness by the IMR with respect to the opportunity to address the proposition that he would be able to find employment in Bamiyan province, no practical injustice arises, because any threats to the applicant’s security that do arise are threats which do not arise for a Convention related reason. There is therefore no practical injustice to the applicant.[173] Put differently, any denial of procedural fairness with respect to this issue could not have altered the ultimate outcome, which was that there was not a well-founded fear of persecution for a Convention related reason if the applicant was to return to Bamiyan province.[174] Likewise, any failure to put to the applicant that his ability to save $8000 whilst working, illegally, in Iran, would not have altered the ultimate finding on this issue. It was simply a piece of evidence which seemed to suggest to the IMR that the applicant was sufficiently resourceful to be able to obtain employment in adverse circumstances.[175]
[172] CB 156 at para.67.
[173] Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 at 14 per Gleeson CJ; [2003] HCA 6 at para.38 per Gleeson CJ (“Lam”).
[174] Lu v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 141 FCR 346 at 356 per Sackville J; [2004] FCAFC 340 at para.47 per Sackville J (with whom Black CJ agreed: FCR at 348; FCAFC at para.5).
[175] CB 156 at para.66.
In the circumstances, ground 3 is not made out.
Ground 4
Ground 4 of the application is as follows:
4.The Independent Merits Reviewer did not afford procedural fairness to the applicant.
Particulars
The Independent Merits Reviewer made the finding that the applicant was unlikely to be identified in Afghanistan as a failed asylum seeker from Australia. The finding is integral to the finding made by the Independent Merits Reviewer that the applicant did not have a well-founded fear of Convention-related persecution. The finding was based on country information as to the large amount of migration between Afghanistan and Iran and Pakistan. The Independent Merits Reviewer did not put to the applicant the substance of the country information referred to.
Applicant’s submissions
The applicant submits in relation to ground 4 as follows:
a)the IMR made the finding that the applicant was unlikely to be identified in Afghanistan as a failed asylum seeker from Australia.[176] The finding is integral to the finding made by the IMR that the applicant did not have a well-founded fear of Convention-related persecution. The finding was based on country information as to the large amount of migration between Afghanistan and Iran and Pakistan. The IMR concluded that there was no credible evidence to support the claim that returnees were killed because they were returning from a Western country; and
b)the IMR did not put to the applicant the substance of the country information referred to. Rather, the IMR told the applicant she was not aware of any information in support of this claim.[177] This was unfair given the significance of this information in the IMR’s rejection of the applicant’s claim under this head.
[176] CB 157 at para.71.
[177] IMR Interview Transcript, pp.32 and 34.
Minister’s submissions
The Minister submits in relation to ground 4 as follows:
a)the alleged denial of procedural fairness in ground 4 fastens upon country information, the substance of which was allegedly not put to the applicant. The information is said to be relevant to the finding that the applicant would not face persecution arising from being identified as a failed asylum seeker from Australia. It would appear that the applicant accepts that other aspects of country information were sufficiently raised;
b)the IMR found that the applicant’s claim that persons are targeted and persecuted by the Taliban on return to Afghanistan from a Western country was unsupported by any authoritative independent evidence.[178] It is convenient to set that out again here:
There was no credible evidence before me to satisfy me as to the assertion that failed asylum seekers from a Western country are for that reason targeted and persecuted by the Taliban or others. Furthermore I consider it unlikely that the claimant would be readily identified as a failed asylum seeker from Australia given the country information as to the large amount of migration between Afghanistan and Iran and Pakistan. Accordingly I do not accept that the claimant would face a real chance of persecution now or in the reasonably foreseeable future for the Convention reason of membership of a particular social group, for the essential and significant reason of his being a failed asylum seeker/returnee from a Western country from the West, if returned to Afghanistan.[179] (emphasis added)
c)given the extracts of country information set out earlier in the IMR Recommendation, the Minister accepts that it may properly be inferred that the country information relied upon in making the emphasised (and challenged) finding was the UNHCR Guidelines 2010;
d)the transcript of the interview with the IMR shows that the IMR put to the applicant the substance of a number of matters arising from country information regarding the present situation in Afghanistan, including that “the UNHCR have also said that there is no evidence of a campaign by the insurgency to target Hazaras.”[180] This comment appears to be taken from the DFAT February 2010 Cable which states the view of the UNHCR on the situation of the Hazaras in Afghanistan, rather than the UNHCR Guidelines themselves. However, the UNHCR Guidelines 2010 are in general agreement with what was reported in that DFAT February 2010 Cable, both of which appear to differ from what is stated in the 2009 Guidelines on this subject. The IMR cited both the UNHCR Guidelines 2010 and the DFAT February 2010 Cable in her reasons. Thus, the Court should find that, in accordance with the holding at Plaintiff M61,[181] the IMR was required, and in this case did, put the substance of the country information to the applicant which bore upon his claims;
e)with respect to the IMR Recommendation dealing with failed asylum seekers, the IMR clearly put to the applicant the substance of information upon which she relied in finding that there was no evidence to support the assertion that failed asylum seekers are targeted by the Taliban;
f)the IMR Recommendation with respect to migration was merely an additional finding that was not material. Notwithstanding the IMR Recommendation that the applicant might not be identified as a failed asylum seeker, the IMR had already found that failed asylum seekers are not targeted by the Taliban. In those circumstances, there was no procedural unfairness.[182] Moreover, this issue was obvious and apparently uncontroversial.[183] The applicant himself accepted during the RSA interview that “[m]any Hazaras travel overseas to work, particularly to Iran”; and
g)the circumstances of this case do not give rise to a denial of procedural fairness. Ground 4 should be rejected.
[178] CB 157 at para.71.
[179] CB 157 at para.71.
[180] IMR Interview Transcript, pp.31 and 32.
[181] CLR at 356-357 per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; HCA at para.91 per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ.
[182] Lam CLR at 13-14 per Gleeson CJ; HCA at para.37 per Gleeson CJ.
[183] Applicants M1015/2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1309 at para.54 per Weinberg J.
Consideration
As is made evident by the use of “[f]urthermore” in the penultimate sentence of paragraph 71 of the IMR Recommendation,[184] the specifically attacked allegation of lack of procedural fairness in relation to migration between Afghanistan, Iran and Pakistan was not essential to a view which had already been reached by the IMR, namely, that there was no credible evidence that failed asylum seekers returning to Afghanistan from a Western country are at risk of being targeted and persecuted by the “Taliban or others” in Afghanistan.[185]
[184] CB 157 at para.71.
[185] CB 157 at para.71.
In any event, it is plain that the IMR suggested to the applicant that the country information suggested that failed asylum seekers returning to Afghanistan from a Western country were not at risk of being targeted and persecuted, for a Convention reason, upon their return to Afghanistan. That proposition was put by reference to UNHCR reports, DFAT reports, and in general terms, and was answered both by the applicant and the applicant’s migration agent who was in attendance at the IMR Interview.[186] Thus, the substance of the country information was put to the applicant, and he was afforded the opportunity to answer the proposition that he was unlikely to be identified in Afghanistan as a failed asylum seeker from Australia. The ultimate finding on this issue was open to the IMR on the basis of the country information, and there was no procedural unfairness in arriving at that finding.
[186] IMR Interview Transcript, pp.30-37.
Ground 4 is not made out.
Conclusions and orders
The Court has concluded that none of the grounds of the application have been made out. It follows that the application must be dismissed. There will be an order accordingly.
The Court will hear the parties as to costs.
I certify that the preceding sixty-seven (67) paragraphs are a true copy of the reasons for judgment of Lucev FM
Date: 19 September 2012
2
19
1