DZABK v Minister for Immigration - [2012] FMCA 1035

FEDERAL MAGISTRATES COURT OF AUSTRALIA

DZABK v MINISTER FOR IMMIGRATION & ANOR

[2012] FMCA 1035

MIGRATION – Judicial review – independent merits review – whether failure to consider a claim made of a well founded fear of persecution – whether failure to consider whether adequate state protection – whether principles concerning adequacy of state protection misapplied.

Constitution (Cth), s.75(v)
Migration Act 1958 (Cth), ss.5, 476

Abebe v The Commonwealth of Australia (1999) 197 CLR 510; [1999] HCA 14
Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 75 ALD 630; [2003] FCAFC 184
Darabi v Minister for Immigration & Citizenship & Anor (2011) 250 FLR 301; [2011] FMCA 371
Dranichnikov v Minister for Immigration & Multicultural Affairs (2003) 77 ALJR 1088; [2003] HCA 26
Htun v Minister for Immigration & Multicultural Affairs (2001) 194 ALR 244; [2001] FCA 1802
Li v Minister for Immigration & Citizenship & Anor (2008) 102 ALD 354; [2008] FCA 902
Minister for Immigration & Citizenship v SZMDS& Anor (2010) 240 CLR 611; [2010] HCA 16
Minister for Immigration & Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259
Minister for Immigration & Multicultural Affairs v Khawar & Ors (2002) 210 CLR 1; [2002] HCA 14
Minister for Immigration & Multicultural Affairs v Respondents S152/2003 (2004) 222 CLR 1; [2004] HCA 18
Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30
Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 78 ALJR 992; [2004] HCA 32
MZXIV v Minister for Immigration & Anor (No. 2) [2006] FMCA 1454
MZXLB v Minister for Immigration & Citizenship [2007] FCA 1588
NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 144 FCR 1; [2004] FCAFC 263
NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10
Plaintiff M61/2010E & Anor v Commonwealth of Australia& Ors (2010) 243 CLR 319; [2010] HCA 41
Razai v Minister for Immigration & Anor [2011] FMCA 777
SZAIX v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2006) 150 FCR 448; [2006] FCA 3
SZHWI v Minister for Immigration & Multicultural Affairs (2007) 95 ALD 631; [2007] FCA 900
Tickner & Ors v Chapman & Ors (1995) 57 FCR 451
VWBU v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 39
Zentai v Honourable Brendan O’Connor & Ors (No. 3) (2010) 187 FCR 495; [2010] FCA 691

Applicant:

DZABK

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

DOMINIC LENNON IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER

File Number:

DNG 46 of 2011

Judgment of:

Lucev FM

Hearing date:

24 November 2011

Date of Last Submission:

24 November 2011

Delivered at:

Perth

Delivered on:

16 November 2012

REPRESENTATION

Counsel for the Applicant:

Mr Gibson and Mr O’Connor

Solicitors for the Applicant:

Northern Territory Legal Aid Commission

Counsel for the Respondents:

Mr Anderson

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

The application be dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT PERTH

DNG 46 of 2011

DZABK

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

DOMINIC LENNON IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER

Second Respondent

REASONS FOR JUDGMENT

The 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 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”) 106-140) 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 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 on the recommendation of the Independent Merits Reviewer.
3.An order remitting the matter to the Independent Merits Reviewer (differently constituted) for determination according to law;
4.Any other orders which the Court thinks fit;
5.Costs.

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 is a single particularised ground of application as follows:
1.The decision of the Second Respondent was made in breach of an essential pre-condition to its jurisdiction or the exercise of its power to recommend that the Applicant not be recognised as a person to whom Australia has protection obligations under the 1951 Convention relating to the Status of Refugees, as amended by the 1967 Protocol relating to the Status of Refugees and/or it failed to observe the requirements of procedural fairness and/or it exceeded its jurisdiction and/or constructively failed to exercise jurisdiction and/or its decision was affected by an error of law.
PARTICULARS
(i)The Second respondent failed to address one of the claimed bases of the Applicant’s fear of persecution and/or to consider and/or deal with an integer of the claims and/or a relevant consideration and/or the case as put and/or a central element of the Applicant’s claims and/or it misunderstood and/or misconstrued a criterion (being the test under the Refugees Convention) about which it had to be satisfied for the purposes of establishing whether the Applicant was owed protection obligations pursuant to s36 of the Migration Act, and/or failed to consider an issue going directly to the question whether that criterion was satisfied in that the Second Respondent failed to deal with the Applicant’s specific claim of fear of persecution of the Taliban qua Taliban as a Hazara Shi’a arising from the recent attacks on Hazara villages in Nawur district, and other attacks not to be characterised simply as a fear of, what the Second Respondent called, “Talibanised Kuchi”.
(ii)It misunderstood and/or misconstrued a criterion (being the test under the Refugees Convention) about which it had to be satisfied for the purposes of establishing whether the Applicant was owed protection obligations pursuant to s36 of the Migration Act in that it misconstrued and/or misconstrued the test of, and/or principles to be applied regarding, adequacy of State Protection in the circumstances of the case, and/or by reason of its failure to deal with the specific claim of fear of the Taliban qua Taliban, which was plainly relevant to the issue of adequate State Protection, and/or failed to apply the correct principles regarding adequacy of State protection to the facts of the case.
Essentially two contentions are raised by the applicant’s grounds, neatly summarised by the Minister as follows:
The applicant makes two complaints. The first is that the Reviewer failed to deal with the applicant’s claim to have feared persecution by the Taliban. The second is that the Reviewer failed to consider whether there was adequate state protection from the Taliban and misapplied the correct principles concerning the adequacy of state protection.[5]
[5] Minister’s Contentions of Fact and Law, para.8.
In relation to these two contentions the Minister contends that:
(a) on a fair reading of the Reviewer’s report he did give consideration to the applicant’s claim to have feared persecution by the Taliban, and on his findings it was unnecessary to consider the issue of adequate state protection from the Taliban (or Kuchis) (Contention 1); and
(b) the Reviewer applied the correct principles concerning the adequacy of state protection in considering the dangers of mugging and theft faced by returnees from the West (Contention 2).[6]
[6] Minister’s Contentions of Fact and Law, para.9, and hereinafter referred to as “Contention 1” and “Contention 2” respectively.

Background

The applicant is an offshore entry person,[7] who arrived at Christmas Island on 26 March 2010 and submitted claims in support of a request for a Refugee Status Assessment[8] on 6 June 2010.[9]
[7] Migration Act, s.5.
[8] “RSA”.
[9] CB 33-67.
On 3 December 2010, the RSA found that Australia did not owe the applicant protection obligations.[10] On 14 December 2010 the applicant requested an independent merits review of the RSA.[11] The applicant made written submissions to the IMR via his migration agent on 2 April 2011.[12]
[10] CB 76-88.
[11] CB 89-93.
[12] CB 94-104.
The IMR conducted an interview with the applicant on 6 April 2011, and received further submissions from the applicant dated 27 June 2011.[13]
[13] Supplementary Court Book (“SCB”) 39-69.
The IMR accepted that there were a number of Convention related bases for the applicant’s alleged fear of persecution,[14] namely:
a)race – Hazara;
b)religion – Shia;
c)particular social group – namely:
i)former land owner;
ii)persons who have been in Pakistan for a prolonged period and have a Pakistani accent;
iii)returnees from the West; and
iv)failed asylum seekers.
[14] CB 133 at para.99.
The IMR then considered whether there was a real chance of persecution on any of these Convention related bases, and determined that there was not,[15] save that the IMR found the applicant faced a real chance of serious harm (muggings and theft) as a “returnee from the West”, but found that the applicant could access state protection from such harm.[16] On the basis of his findings the IMR determined that the applicant did not meet the criterion for a protection visa.[17]

Contention 1

[15] See CB at paras.107-113 (race), 123 (religion), 127 (landowner); 130 (Pakistani residence and accent) and 136 (failed asylum seeker).

[16] CB 138 at paras.131-133.

[17] CB 140 at paras.142-143.

Applicant’s submissions

In relation to Contention 1 the applicant submits that:
a)there is jurisdictional error which arises from a failure to consider and make findings upon a discrete claim arising on the materials before the IMR. It is put that the IMR failed to deal with the applicant’s specific claim of fear of persecution by the Taliban as a Hazara Shia arising from the recent attacks on Hazara villages in Nawur district, and other attacks not to be characterised as simply a fear of what the IMR called “talibanised Kuchi”. The use of that term by the IMR imposed an unnecessary gloss on the claims that were made, and diverted the IMR from a consideration of the real issues of the different sources of harm which the applicant feared;
b)the IMR purported to deal with the applicant’s fear of the Kuchi and took note of the recent raids on villages and infrastructure in Nawur supported by the Taliban, showing that the Taliban was working in co-ordination with Kuchi.[18] Police had been deployed from other parts of Ghazni province and a delegation had been sent to the area to investigate. A report on the incidents expressed the view that the Kuchi attacks on land disputes would become catastrophic if not resolved. There was a separate report which referred to attacks by Kuchis on 26 villages in Nawur District.[19] The applicant specifically claimed that:
[18] CB 112 at para.34.
[19] CB 114 at para.42.
… a few days ago the area in Nawur in Ghazni was attacked by the Taliban. About 25 villages were captured by the Taliban. The war continues in that area. The Taliban looted houses and killed people. …The 25 villages recently attacked were all Shi’a…. Regarding the Kuchis, if it was just clashes over land, why did they kill 2 year old and 5 year old children. Hazaras still get killed by the Kuchi, we are not protected from them.
The Taliban are still targeting us as Hazaras. They killed a lot of people in my area including a member of parliament and threw the dead body into the city. This is recent news that happened in the last 10-15 days… [20]
[20] CB 114 at para.42, and see original statement of claims at CB 55.
and in doing so distinguished between the Taliban and the Kuchi;
c)the IMR noted that:
i)Nawur is the largest district in Ghazni and its population is entirely Hazara;[21] and
[21] CB 128 at para.72.
ii)the applicant originates from the north-eastern part of Nawur in Ghazni province adjoining Beshoud;[22]
[22] CB 128 at para.73. There are a variety of spellings of “Beshoud” in the materials.
d)the IMR established that a number of Convention nexi existed, including race (Hazara). It considered the Hazara race Convention nexus without any reference to the current situation in Nawur concerning the Taliban,[23] and then, under the heading of Kuchis, proceeded to consider the applicant’s claim in the context of persecution as an Hazara (and Shia and other claimed nexi) arising from the threat of the Kuchis;
[23] CB 133-134 at paras.101-107.
e)the finding that the IMR makes simply relates to the Kuchi, or the “talibanised” Kuchi, and finds that the significant reason behind the raids is tension over land and natural resources;[24]
[24] CB 135 at para.113.
f)insofar as the applicant’s risk of harm and fear of persecution in Nawur is concerned, the characterisation of the Kuchis having become “talibanised” and the essential reason behind the raids being non-Convention related, cannot stand as consideration of the applicant’s claim to fear the Taliban as a Hazara Shia in view of the applicant’s specific claim of fear of the Taliban;
g)in this context the applicant’s migration agent’s submission of 27 June 2011,[25] referring to a December 2010 Report on Afghanistan[26] from Professor Maley, is almost prophetic when it says “…latent tensions over issues such as land are tailor-made for oppositional groups that seek to build support by assisting one party or another, and there is every reasons to suspect a Taliban role in fuelling such tensions. Here the position of the Hazaras as an overwhelmingly Shiite non-Pashtun minority makes them an easy target for overwhelmingly-Pushtun Taliban seeking to re-build support from Sunni Pashtun groups such as the kuchis”;[27]
[25] “27 June 2011 Submission”; SCB 39-45.
[26] “Afghanistan Report – December 2010”.
[27] SCB 41 (quoting para.10 of the Afghanistan Report - December 2010).
h)subject to the question of State protection, it is clear that the IMR ignored or overlooked the claim of fear of the Taliban, as distinct from the Kuchi or talibanised Kuchi;
i)the IMR Recommendation is silent as regards the applicant’s claims of fear on the discrete and distinct Convention basis of fear of the Taliban, which was a crucial integer or aspect of the case presented;
j)there is no express or implicit consideration,[28] let alone active intellectual consideration of this aspect of the claim, despite it being squarely advanced;
[28] MZXLB v Minister for Immigration & Citizenship [2007] FCA 1588 at paras.18-19 per Finkelstein J (“MZXLB”).
k)this is not a case which can be characterised as one where:
i)the factual findings made relating to an asserted basis for protection necessarily and inevitably deny any other basis for protection;[29] or
[29] Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 at 354 per McHugh, Gummow and Hayne JJ; [2001] HCA 30 at para.95 per McHugh, Gummow and Hayne JJ.
ii)it was unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality; or
iii)because there was a factual premise upon which the contention rests which was rejected;
l)the authorities demonstrate the requirement for dealing with the case that is put,[30] that is to delineate the nature and content of the claims that are made and the basis and source of the fear of harm alleged, and then to consider them and make findings;
m)the claim in question, that is fear of serious harm to the applicant from the Taliban, was clearly articulated and involved facts that were sufficient in clarity to require the IMR to consider whether the applicant faced a well-founded fear of persecution on that basis and for the reason alleged.[31] The IMR failed to complete its jurisdictional task in this respect;
n)in MZXIV v Minister for Immigration & Anor (No. 2)[32] this Court held that the wholesale reproduction of submissions and evidence is not in itself an indication that material has been “considered” in the required sense.[33] There was nothing in the IMR Recommendation in the present case which indicated that the IMR had in any way embarked on the process of actually fixing his mind upon the applicant’s claim that he feared persecution from the Taliban as a Hazara Shia;
o)the authorities stand for the proposition that a failure to consider the claims, or a claim, of an applicant is jurisdictional;[34] and
p)in Li v Minister for Immigration & Citizenship & Anor[35] the Federal Court said:
In the case of an application for a protection visa, therefore, the claims which the applicant actually makes constitute the definitional elements of the application. As is clear from cases such as Htun and Dranichnikov, the courts have regarded such claims as more than merely pieces of evidence in support of a contention that there exists a fear of one of the kinds referred to in the Convention. They have been regarded, it seems, as definitional with respect to the very question which comes before the relevant decision-maker.[36]
[30] In addition to MZXLB, the applicant cited a further eleven High Court and Federal Court authorities. It is only necessary to note Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 75 ALD 630 at 640-641 per French, Sackville and Hely JJ; [2003] FCAFC 184 at para.45 French, Sackville and Hely JJ (“WAEE”); Dranichnikov v Minister for Immigration & Multicultural (2003) 77 ALJR 1088; [2003] HCA 26 (“Dranichnikov”); and Htun v Minister for Immigration & Multicultural Affairs (2001) 194 ALR 244 at 259 per Allsop J; [2001] FCA 1802 at paras.40-42 per Allsop J (“Htun”). Each of the cases cited involved a failure on the part of a Tribunal to consider a distinct claim or integer of a claim that was raised. Each of the cases involved the setting aside of a Tribunal decision on the ground of jurisdictional error.
[31] SZHWI v Minister for Immigration & Multicultural Affairs (2007) 95 ALD 631 at 634 per Allsop J; [2007] FCA 900 at para.15 per Allsop J.
[32] [2006] FMCA 1454 (“MZXIV (No. 2)”).
[33] MZXIV (No. 2) at paras.42-44 per Riley FM, citing Tickner & Ors v Chapman & Ors (1995) 57 FCR 451.
[34] The applicant cited sixteen High Court and Federal Court authorities for this proposition. It is only necessary to note Dranichnikov; WAEE; Htun and Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 78 ALJR 992; [2004] HCA 32.
[35] (2008) 102 ALD 354; [2008] FCA 902 (“Li”).
[36] Li ALD at 362 per Jessup J; FCA at para.22 per Jessup J.

Minister’s submissions

The Minister submits in relation to Contention 1 that:
a)the applicant contends that the IMR “ignored or overlooked the claim of fear of the Taliban qua Taliban, as distinct from Kuchi/Talibanised Kuchi”;[37]
b)the Minister accepts a claim of fear of the Taliban was made by the applicant,[38] and that it was the principal basis upon which the applicant claimed to fear persecution on the basis of his race and religion if returned to Afghanistan, and says that it was clearly understood by the IMR.[39] The IMR referred to a considerable body of country information, most of it relating to the situation of Hazaras in light of the Taliban insurgency. The IMR’s summary of that information made express reference to the Taliban;[40]
c)there can be no doubt that the IMR understood that the claims made on the basis of race and religion were essentially predicated on a fear of persecution by the Taliban. The only fair reading of the IMR’s report, bearing in mind recent warning against construing the words of an administrative decision maker minutely and finely with an eye focused on the perception of error,[41] is that the IMR considered that the applicant did not face a real chance of persecution by the Taliban on the basis of his race or religion if he returned to Nawur;
d)having reached this conclusion it was unnecessary for the IMR to consider the issue of state protection from the Taliban generally; and
e)the IMR also considered a further aspect of the claim raised by the applicant relating to Hazara-Kuchi conflict.[42] On the basis of country information he concluded that “the essential and significant reason for the continuing tensions between Kuchis and Hazaras is competition over land and resources rather than race, religion or any other Convention related reason.”[43] The IMR made this finding notwithstanding that he acknowledged that, “in Nawur the Kuchis have become “talibanised” in so far as the Taliban have provided support to the Kuchis in their raids on villages and infrastructure”.[44]

Consideration

[37] Applicant’s Contentions of Fact and Law at para.35.

[38] Minister’s Contentions of Fact and Law, para.11.

[39] CB 108-111 at paras.8-10, 12, 21-23 and 26-27; CB 114 at para.42.

[40] CB 139 at paras.137-138.

[41] Minister for Immigration & Citizenship v SZMDS & Anor (2010) 240 CLR 611 at 634 and per Heydon J; [2010] HCA 16 at fn 73 per Heydon J.

[42] CB 134-135 at paras.108-113.

[43] CB 134 at para.109.

[44] CB 135 at para.113.

The claim

Although not expressed succinctly in the particularised ground, the applicant alleges that the IMR failed to consider the applicant’s claim that he had a well founded fear of persecution by, and serious harm from, the Taliban if returned to Afghanistan, by reason of his race, being a Hazara.

The law

In Dranichnikov the High Court found error founding relief under s.75(v) of the Constitution in circumstances where:
a)the Refugee Review Tribunal misunderstood, and failed to deal with, the case presented to it, by reason of Mr Dranichnikov being a member of a social group, not just of Russian business people, but of Russian business people involved in public protest against state sanctioned corruption and violence;[45]
b)the failure to respond to a substantial, clearly articulated argument relying upon established facts was a failure to accord natural justice;[46] and
c)a failure to respond to a substantial, clearly articulated argument relying upon established facts was also a constructive failure to exercise jurisdiction.[47]
[45] Dranichnikov ALJR at 1092 per Gummow and Callinan JJ; HCA at para.23 per Gummow and Callinan JJ.
[46] Dranichnikov ALJR at 1092 per Gummow and Callinan JJ; HCA at paras.24-25 per Gummow and Callinan JJ. See also Plaintiff M61 CLR at 356 per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; HCA at para.90 per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ where it was said that: “The failure to deal with the claim was a denial of procedural fairness”, because the Minister was not informed upon a question he had been asked to consider.
[47] Dranichnikov ALJR at 1092-1093 per Gummow and Callinan JJ; HCA at paras.24-25 and 32 per Gummow and Callinan JJ.
In Dranichnikov the High Court said that failures of the type identified above entitled a court exercising jurisdiction under s.75(v) of the Constitution to consider exercising the discretion to grant relief.[48]
[48] Dranichnikov ALJR at 1093 per Gummow and Callinan JJ; HCA at paras.33-34 per Gummow and Callinan JJ.
In Htun the Federal Court observed, in the context of claims made with respect to an application for a protection visa, that:
To make a decision without having considered all the claims is to fail to complete the exercise of jurisdiction embarked on.[49]
[49] Htun ALR at 259 per Allsop J; FCA at para.42 per Allsop J.
Even where a claim is not necessarily articulated expressly in oral submissions at a hearing before the decision maker, the “clarity of … expression of … fear in … [an] application for review and the existence of objective material put forward … to support … [a claim]” means that there is an extant claim.[50]
[50] Htun ALR at 259 per Allsop J; FCA at para.42 per Allsop J.
The claims made are “definitional with respect to the very question which comes before the relevant decision-maker.”[51]
[51] Li ALD at 362 per Jessup J; FCA at para.22 per Jessup J.
What is required of the decision maker was described in practical terms by this Court in MZXIV (No. 2) where the Court spoke of the decision maker “embark[ing] on the process of actually fixing its mind upon the applicant’s claims”[52] and of “a specific consideration of the claim”.[53]
[52] MZXIV (No. 2) at para.44 per Riley FM.
[53] MZXIV (No. 2) at para.45 per Riley FM.
The failure to expressly deal with a claim must however also be considered in the context of what was said by the Full Court of the Federal Court in WAEE, namely that:
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 a 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.[54]
[54] WAEE ALD at 641 per French, Sackville and Hely JJ; FCAFC at para.47 per French, Sackville and Hely JJ.

Was the claim of persecution on the basis of Hazara race at the hands of the Taliban actually made?

There is no dispute, and the Minister accepts, that the claim of persecution on the basis of Hazara race at the hands of the Taliban was actually made.[55]

Was the claim of persecution on the basis of Hazara race at the hands of the Taliban identified and considered by the IMR?

[55] See para.13(b) above.

In examining whether the claim of persecution was identified and considered by the IMR, the Court is cognisant that it ought not cross the line between judicial review and merits review.[56]
[56] Minister for Immigration & Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259 at 272 and 281-282 per Brennan CJ, Toohey, McHugh and Gummow JJ (“Wu Shan Liang”); Zentai v Honourable Brendan O’Connor & Ors (No. 3) (2010) 187 FCR 495 at 589 per McKerracher J; [2010] FCA 691 at para.367 per McKerracher J.
The IMR Recommendation begins by indicating that it “will consider afresh all claims for protection as they relate to the Refugees Convention, taking into account all available information”.[57] The relevant article of the Convention defining a refugee is set out, including the reference to a well-founded fear of persecution for reasons of “race”.[58]
[57] CB 107 at para.2.
[58] CB 107 at para.4.
The IMR Recommendation notes that:
a)the relevant Independent Protection Assessment Office file relating to the applicant, including the applicant’s claims to engage Australia’s protection obligations under the Convention; and
b)submissions from the applicant and the applicant’s “adviser”,
are before the IMR.[59]
[59] CB 107 at para.7.
The IMR Recommendation then sets out at considerable length the various interviews attended by the applicant, including his IMR interview.[60]
[60] CB 107-114 at paras.8-42.
The Minister contends that the IMR “understood” the applicant’s claim of a fear of persecution by the Taliban on account of the applicant’s Hazara race. Certainly, aspects of that claim were set out in the IMR Recommendation. Part of a statutory declaration lodged by the applicant in support of his claim was set out as follows:
Hazara and Shi’as are being killed by the Taliban, even in Pakistan the Pakistani Taliban persecute and kill Hazaras for these reasons. I am recognised by my facial features and I am exposed to persecution because of that. There is no protection or security for me in Pakistan and in Afghanistan.[61]
[61] CB 109 at para.10.
Following the applicant’s interview with the IMR, and the forwarding of a letter inviting comment on certain information, the claimant sent a letter to the IMR in which he said:
I do not understand these articles about security in Afghanistan. A few days ago the Area of Nawur in Ghazni was attacked by the Taliban. About 25 villages were captured by the Taliban. The war continues in that area. The Taliban looted houses and killed people.
Because of the fear of Americans makes the situation calmer in Afghanistan, but the recent news says the Taliban are still killing Hazaras. This is the case also in Kabul, where there was news of Taliban attacks in Kabul.
When the country information says that everyone is being targeted by the Taliban, 99% of those people are Shi’s. The 25 villages recently attacked were all Shi’a.
… The Taliban are still targeting us as Hazaras. They killed a lot of people in my area including a member of parliament and threw the dead body into the city. This is recent news that happened in the last 10-15 days. He was travelling from Kabul to Daikundi.[62]
[62] CB 114 at para.42.
The IMR also noted that:
a)“… although the position of the Hazaras under the Taliban government was very precarious, the situation had changed dramatically since the Taliban were overthrown in 2001”;[63]
b)“The UNHCR Guidelines indicate that the situation of Hazaras has improved and that there was no evidence of the campaign by the insurgency to target Hazaras. I suggested that this tended to indicate that he would not be singled out and pursued because he is Hazara Shi’a. The claimant responded that 2010 was the worst year for Hazara Shi’as …”;[64]
c)a UK Home Office report “indicated that in Hazerajat it was the Pashtuns the Taliban were targeting rather than the Hazaras”;[65] and
d)“… the country information was that the Hazaras areas had established barriers against Taliban infiltration and that Hazara commanders have command over militia which are strong enough to repel the Taliban.”[66]
Each of the above matters was put to the applicant in the course of the IMR interview.
[63] CB 110 at para.21.
[64] CB 110 at para.22.
[65] CB 111 at para.26.
[66] CB 111 at para.27.
It is apparent that the IMR understood that the applicant was making:
a)general claims of persecution against Hazaras on the basis of race in Afghanistan, and which were part of an ongoing historical persecution of Hazaras in Afghanistan;
b)a claim of persecution of Hazaras by Kuchi nomad pastoralists, including talibanised Kuchis; and
c)a claim that the Taliban were persecuting Hazaras,
from which, and on the basis of which, the applicant asserted a well founded fear of persecution by reason of race.
Both from the understanding that the IMR had, and on the basis of matters noted in the IMR interview, it can be said that the IMR inquired of the applicant concerning matters which contradicted his claims, including his claims of a well founded fear of persecution by the Taliban on the basis of his Hazara race.
An understanding of what the IMR understood and considered in this matter might also be gleaned from his detailed consideration of country information, including:
a)the US State Department of 2010 Human Rights Report: Afghanistan, which observed that there was ongoing social discrimination against Shi’a Hazaras, including along race lines;[67]
b)a February 2010 DFAT report on the situation of the Hazara minority in Afghanistan[68] which observed that:
Afghanistan’s Hazaras do not live in fear of violence or systemic 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.[69]
and the DFAT Hazara Minority Report observations on the position of the UNHCR, reported as follows:
UNHCR said there was no evidence of a campaign by the insurgency to target Hazaras. There were anomalous cases, such as in Ghazni (where majority Hazaras had clashed with nomadic Kuchi people over pastoral issues: … but in general Pashtun communities were suffering more from the insurgency because they were the primary targets for Taliban control. The Hazaras were experiencing a relative “golden age” in light of their tragic past.[70]
[67] CB 116 at para.45.
[68] “DFAT Minority Report”.
[69] CB 118 at para.49.
[70] CB 118-119 at para.49.
c)United Nations Assistance Mission in Afghanistan advice that it had not received reports “of Hazaras specifically being targeted or discriminated against in the current environment” and that the “primary incidents of violence in Hazara communities over recent years had been with Kuchis … generally related to disputes over random access to natural resources”;[71] and
d)and a DFAT September 2010 report which indicated that:
[71] CB 119 at para.49.
… Hazara districts in Ghazni Province are relatively stable compared to Pashtun dominated districts, and enjoy better access to services.
…
Security challenges in Ghazni are not specific to the Hazara community. Hazara districts – including … Nawur – are relatively stable compared to Pashtun districts. Threats facing the Hazara community vary across different provinces and districts, and according to protection arrangements brokered with local commanders. There is a lack of effective protection from the state in Ghazni, but Hazaras strongmen control most of the Hazara districts. Interlocutors described the possibility of wholesale violence against the Hazara community in Ghazni as unlikely, given commanders’ strength and the flexibility of their relationships with other factional and insurgency networks – including the Taliban …”[72]
[72] CB 120 at para.50.
The IMR also looked at country information in respect of the Nawur – Beshsud area from which the applicant came, and specifically 2003 and 2004 reports from the UNHCR which indicated that the Nawur district was relatively safe, with district authorities and security or police apparatus in place, and a predominantly, at least 94 percent, ethnic Hazara majority.[73]
[73] CB 124 and 125 at paras.67-68.
The IMR later noted a UNHCR district profile from 2010 which noted that Nawur was the largest district in Ghazni province and was “entirely Hazara … its population is 100% Hazara”.[74]
[74] CB 128 at para.72.
The real question in this case is: did the IMR actually consider the claim of a well founded fear of persecution by the Taliban on account of the applicant’s Hazara race? From the material set out above it is apparent that the IMR:
a)understood the claim;
b)referred to various materials related to the claim, including independent country information; and
c)put information contrary, or adverse, to the claim to the applicant in the course of the IMR interview, and, it would seem in a letter following the IMR interview.
In the IMR Recommendation under the heading “Whether there is a real chance of persecution by reason of any of the Convention nexuses” and the sub-heading “Race-Hazara” the IMR concluded that:
In light of the country information on Nawur, I have come to the conclusion that Hazaras in Nawur do not face a real chance of persecution by reason of their ethnicity.[75]
[75] CB 134 at para.107.
Having referred to country information, including that set out above, the IMR summarised the country information, and in respect of its consideration of that country information said as follows:
I have considered a range of information including material provided by the claimant and his agent. In note that in a post IMR interview statement the claimant referred to recent incidents in which about 25 villages were captured by the Taliban. I have also had regard to and attach some weight to the views expressed by commentators such as Professor William Maley, Professor Thomas Ruttig and Halima Kazem (and a number of other academic and media reports). However, I consider that the overwhelming weight of country information indicates that Hazara Shi’as in Nawur do not face a real chance of persecution by reason of their race or religion and I find that they do not.[76]
[76] CB 139 at para.137.
It is the Court’s view that the IMR did consider the applicant’s claim as to whether he had a well founded fear of persecution by the Taliban on the basis of his Hazara race. It did so by reference to the applicant’s claim, various aspects of which were set out in the IMR Recommendation, its assessment of the evidence given by the applicant, including his answers to the contradictory, or adverse information put to him by the IMR, and the country information. On the basis of its consideration of all of that information it arrived at a view that if the applicant were to be returned to Afghanistan, and Nawur particularly, he did not face a real chance of persecution. The weight to be given to evidence generally, and in relation to the country information, was entirely a matter for the IMR.[77] The conclusion that there was no real chance of persecution of the applicant on the basis of his Hazara race was one which was open on the materials weighed and considered by the IMR and not one to be disturbed on judicial review.[78] There was some contrary information, but it is clear that the IMR considered and weighed that contrary information as part of the decision making process. No jurisdictional error, as asserted by the applicant, or any other error, is apparent in the IMR’s consideration of the applicant’s persecution claim. Above all, the IMR did not fail to consider that claim. In the circumstances ground 1 is not made out.

Contention 2

[77] Wu Shan Liang CLR at 280-281 per Brennan CJ, Toohey, McHugh and Gummow JJ and 291-292 per Kirby J; Abebe v The Commonwealth of Australia (1999) 197 CLR 510 at 579-580 per Gummow and Hayne JJ; [1999] HCA 14 at paras.195 per Gummow and Hayne JJ (“Abebe”); NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at para.11 per Gray, Tamberlin and Lander JJ (“NAHI”).

[78] Wu Shan Liang CLR at 280-281 per Brennan CJ, Toohey, McHugh and Gummow JJ and 291-292 per Kirby J.

Applicant’s submissions

In relation to Contention 2 the applicant submits that:
a)the IMR made a finding that “in any event the country information indicates there is State protection”;[79]
[79] CB 135 at para.114.
b)the IMR accepted that the information about the level and adequacy of state protection was subject to some disagreement, and that Hazara leaders have said it is ineffectual;[80]
[80] CB 135 at para.114.
c)the IMR acknowledged state protection is not comprehensive, and noted that the country information indicated that the Ghazni police had intervened and sent in an investigation team to investigate recent attacks, and had requested assistance from police in Jaghori and Qarabagh;[81]
[81] CB 135 at para.114.
d)the IMR referred to various legal authorities and concluded that “the state authorities are not refusing to provide protection on Convention grounds, nor are they turning a blind eye on Convention grounds … the country information demonstrates that the law enforcement authorities are demonstrating their commitment to provide protection to those affected by Kuchi violence”;[82]
[82] CB 136 at para.120.
e)this treatment of state protection came under the heading of “Kuchis”;[83]
[83] CB 134.
f)the IMR’s finding is confined to state protection from Kuchi violence. A finding of adequacy of state protection cannot immunise or protect the IMR Recommendation where there has been a failure to deal with an integer of a claim;
g)the finding about tensions between Kuchi and Hazara “relat[ing] to land” is reiterated under the heading of “Country information summary”[84] and the IMR finds that “to the extent that the Kuchis are tainted with “Talibanisation” State protection, although not perfect, would be available to the applicant against serious harm from the Kuchis and their Taliban cohorts”.[85] Again the question of State protection is not directed at the applicant’s fear of the Taliban;
[84] CB 139 at para.138.
[85] CB 139 at para.138.
h)the position is analogous to that in VWBU v Minister for Immigration & Multicultural & Indigenous Affairs,[86] where the claim was that the applicant’s husband was a member of the Special Forces in the Turkish Army, who had undertaken operations against members of the PKK, and that as a result her name and her husband’s name were on a PKK ‘blacklist’, and they received threatening telephone calls. It was held on appeal that one aspect of the determination was whether the fear of persecution held by the appellant was for reasons of an actual or imputed political opinion, or as a member of a particular social group as a person on a PKK blacklist, or as the wife of a person on a PKK blacklist. The claim considered by the Refugee Review Tribunal[87] was a different claim, and a claim which was not the claim put by the applicant, namely whether a fear of persecution held by a member of the armed forces or as a family member of a member of the armed forces was well founded. The Tribunal was required, but failed, to consider and make findings in respect of the claim made by the appellant. There was no independent finding of adequate state protection, as the finding related to the claim with which the RRT was dealing, namely the threat likely to be experienced by members of the Turkish armed forces and their families; and that was not the appellant’s claim. The question of whether a person “in the appellant’s position” was able to obtain adequate protection from the Turkish authorities was not addressed by the RRT. The Federal Court noted that the RRT made no reference in its state protection finding to the claim of the appellant that the Turkish authorities stated they could only provide the wife with protection for three months but no longer. The failure to deal with that specific claim, which was plainly relevant to the issue of adequate state protection for the appellant or for persons in her position, supported the conclusion that the RRT was dealing with a different claim. There had, therefore, been a constructive failure of jurisdiction;
[86] [2006] FCA 39 (“VWBU”).
[87] “RRT”.
i)in Minister for Immigration & Multicultural Affairs v Respondents S152/2003[88] the High Court held that the nature of the case sought to be made and the case it was addressing was not one of the inability of the State to afford protection, but rather the instigation or encouragement or condonation by the Ukrainian authorities of the harm suffered. The majority set out the following principle: that the State was obliged to “take reasonable measures to protect the lives and safety of its citizens, and those measures would include an appropriate criminal law, and the provision of a reasonably effective and impartial police force and justice system”.[89] In S152, however, the country information gave no cause to conclude that there was any failure of state protection in the sense of a failure to meet the standards of protection required by international standards;[90]
[88] (2004) 222 CLR 1; [2004] HCA 18 (“S152”).
[89] S152 CLR at 11 per Gleeson CJ, Hayne and Heydon JJ; HCA at para.26 per Gleeson CJ, Hayne and Heydon JJ.
[90] S152 CLR at 11 per Gleeson CJ, Hayne and Heydon JJ; HCA at para.26 per Gleeson CJ, Hayne and Heydon JJ.
j)the country information referred to by the IMR has a specific reference to a DFAT report indicating “a lack of effective protection from the state in Ghazni”.[91] The country information itself shows the elements of the S152 test simply cannot be met, and in purporting to do so the IMR misapplied or misunderstood the law;
[91] CB 120 at para.50.
k)regarding the “inability of the State to protect where there is non-Convention related persecution” the following principles apply:
i)it is the obligation of a State to provide an adequate or reasonable armoury of laws and other mechanisms capable of providing international standards of protection[92] against the perpetration of violence on its citizens;[93]
[92] S152 CLR at 11-12 per Gleeson CJ, Hayne and Heydon JJ; HCA at para.27 per Gleeson CJ, Hayne and Heydon JJ.
[93] S152 CLR at 11 per Gleeson CJ, Hayne and Heydon JJ; HCA at para.26 per Gleeson CJ, Hayne and Heydon JJ.
ii)those standards cannot provide an “absolute guarantee” of protection; the measures taken to protect the lives and safety of citizens must be “reasonable”;[94] but they cannot be expected to protect against “individual and random” incidents of harm;[95]
[94] S152 CLR at 40 per Kirby J; HCA at para.117 per Kirby J.
[95] S152 CLR at 41 per Kirby J; HCA at para.119 per Kirby J.
iii)there must be a reasonable willingness and ability by the State and its agents to invoke those laws and mechanisms against the perpetrators of violence,[96] and this may necessitate examining how State agents act at a “local level” regardless of the State’s “leaders’ good intention”;[97] and
iv)if the State or its agents condone, approve, tolerate,[98] or are indifferent to the criminal conduct concerned:[99]
... then the requirement that the persecution be by reason of one of the Convention grounds may be satisfied by the motivation of either the criminals or the state [or its agents].[100]
l)the IMR misapplied the correct principles, or did not apply them or misconstrued, or misunderstood them, not least by being satisfied that the sending of investigators to Nawur after the event in the circumstances described can represent adequate state protection;[101]
m)moreover, there was no examination or assessment as to whether the State fulfilled its obligations to take reasonable measures to protect the lives and safety of its citizens, including appropriate criminal law, and the provision of a reasonably effective and impartial police force and justice system;[102]
n)the whole weight of country information, in addition to the specific information regarding lack of state protection in Ghazni noted above, indicates the absence of all those measures;[103]
o)using a term such as “turning a blind eye”[104] is further indication of misconstruction of the test; and
p)the IMR fell into jurisdictional error by overlooking the significance of the claim advanced on the material before him of the applicant’s fear of the Taliban, and by misconstruing the test of State protection to be applied.
[96] S152 CLR at 9 per Gleeson CJ, Hayne and Heydon JJ; HCA at para.21 per Gleeson CJ, Hayne and Heydon JJ.
[97] SZAIX v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2006) 150 FCR 448 at 460 per Madgwick J; [2006] FCA 3 at para.37 per Madgwick J.
[98] Minister for Immigration & Multicultural Affairs v Khawar & Ors (2002) 210 CLR 1 at 13 per Gleeson CJ; [2002] HCA 14 at para.31 per Gleeson CJ (“Khawar”).
[99] S152 CLR at 41 per Kirby J; HCA at para.119 per Kirby J.
[100] Khawar CLR at 13 per Gleeson CJ; HCA at para.26 per Gleeson CJ.
[101] CB 135-136 at paras.114-120, and CB 139 at para.138.
[102] S152 CLR at 11 per Gleeson CJ, Hayne and Heydon JJ; HCA at para.26 per Gleeson CJ, Hayne and Heydon JJ.
[103] CB 115-128 at paras.43-72.
[104] CB 136 at para.120.

Minister’s submissions

In relation to Contention 2 the Minister submits that:
a)the issue of state protection only arose for determination in the context of the IMR’s finding that the applicant faced a real chance of serious harm (muggings and theft) as a “returnee from the West”.[105] The IMR was otherwise under no obligation to consider state protection;[106]
b)the IMR found that the applicant, “could, as an Hazara in Nawur, access state protection against such criminal acts”.[107] In doing so the IMR referred back to his discussion of the subject.[108] The fact that that discussion arose in the context of considering Kuchi violence does not undermine its relevance in considering muggings and theft more generally;
c)in considering the “level and adequacy of state protection”[109] the IMR took into account relevant authority.[110] The IMR considered whether the state would refuse to provide protection or condone the criminality by “turning a blind eye”, and whether there was a demonstrated commitment to provide protection.[111] The IMR also found that Nawur “is overwhelmingly Hazara and there is a police organisation that is prepared to investigate offences against Hazaras”;[112] and
d)the IMR has not failed to apply the principles summarised in the Applicant’s Contentions. No particular complaint is made in that regard. Rather, the applicant complains that:
i)“the country information itself shows the elements of the S152 test simply cannot be met”,[113] and
ii)“the whole weight of country information ... indicates the absence of all [relevant] measures”.[114]
[105] CB 138 at paras.131-132.
[106] S152 CLR at 14 per Gleeson CJ; [2004] HCA 18 at paras.32-34 per Gleeson CJ; Razai v Minister for Immigration & Anor [2011] FMCA 777 at paras.32-79 per Nicholls FM.
[107] CB 138 at para.133.
[108] CB 135-136 at paras.114-120.
[109] CB 136 at para.119.
[110] CB 135-136 at paras.115-118.
[111] CB 136 at para.120.
[112] CB 132 at para.95.
[113] Applicant’s Contentions of Fact and Law at para.53.
[114] Applicant’s Contentions of Fact and Law at para.57.
The Applicant’s Contentions of Fact and Law going to the content of country information and the weight to be accorded to it reveal an impermissible attempt at merits review. The question of weight is entirely a matter for the IMR. The IMR was entitled to interpret and place such weight as he considered appropriate on the country information.[115]
[115] Wu Shan Liang CLR at 280-281 per Brennan CJ, Toohey, McHugh and Gummow JJ and 291-292 per Kirby J; Abebe CLR at 579-580 per Gummow and Hayne JJ; HCA at para.195 per Gummow and Hayne JJ; NAHI at para.11 per Gray, Tamberlin and Lander JJ.

Consideration

The IMR was under no obligation to consider the question of state protection, save as it related to muggings and theft of returnees from the West.[116] The IMR did so, specifically considering whether there was an adequate level of state protection, a commitment to provide protection, and a police force prepared to investigate offences against Hazara in the totally Hazara district of Nawur. The IMR concluded, having considered the material, that state protection was available in relation to muggings and theft of returnees from the West.[117]
[116] S152 CLR at 14 per Gleeson CJ; [2004] HCA 18 at paras.32-34 per Gleeson CJ; Razai v Minister for Immigration & Anor [2011] FMCA 777 at paras.32-79 per Nicholls FM.
[117] CB 132 at para.95; CB 135-136 at paras.114-120 and CB 138 at para.133.
It was for the IMR to consider the available information, including country information, and to weigh that material and evidence generally, before arriving at a decision.[118] The conclusion that there was adequate state protection available in relation to muggings and theft of returnees from the West was one which was open on the materials weighed and considered by the IMR, and that consideration included reference to materials which might have led the IMR to a contrary conclusion, but which it is clear that the IMR considered and weighed as part of the decision making process. That proc ess in this case is not one to be disturbed on judicial review for it has been conducted properly, and the decision made was open on the materials available.[119] Ground 2 has, therefore, not been made out.
[118] Wu Shan Liang CLR at 280-281 per Brennan CJ, Toohey, McHugh and Gummow JJ and 291-292 per Kirby J; Abebe CLR at 579-580 per Gummow and Hayne JJ; HCA at paras.195 per Gummow and Hayne JJ; NAHI at para.11 per Gray, Tamberlin and Lander JJ.
[119] Wu Shan Liang CLR at 280-281 per Brennan CJ, Toohey, McHugh and Gummow JJ and 291-292 per Kirby J.

Conclusion and order

The applicant has not made out the grounds of his application. 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 forty-five (45) paragraphs are a true copy of the reasons for judgment of Lucev FM

Associate:

Date: 16 November 2012