DZABR v Minister for Immigration
[2012] FMCA 558
•29 June 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| DZABR v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 558 |
| MIGRATION – Judicial review of IMR decision recommending applicant not be regarded as refugee – whether IMR required to make finding as to district of origin within country of nationality – whether IMR findings in relation to district of origin within country of nationality amenable to review. |
| Migration Act 1958 (Cth), ss.36, 476 & 477 1951 Convention Relating to the Status of Refugees as Amended by the 1967 Protocol Relating to the Status of Refugees |
| DZABS v Minister for Immigration & Anor [2012] FMCA 297 Craig v The State of South Australia [1995] HCA 58 Plaintiff S157/2002 v The Commonwealth of Australia (2003) 211 CLR 476 SZQEN v Minister for Immigration and Citizenship [2012] FMCA 387 |
| Applicant: | DZABR |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | DOMINIC LENNON IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER |
| File Number: | DNG 53 of 2011 |
| Judgment of: | Lindsay FM |
| Hearing date: | 2 March 2012 |
| Date of Last Submission: | 2 March 2012 |
| Delivered at: | Adelaide |
| Delivered on: | 29 June 2012 |
REPRESENTATION
| Counsel for the Applicant: | Mr Gibson |
| Solicitors for the Applicant: | Hunt & Hunt Lawyers |
| Counsel for the Respondents: | Mr Anderson |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
That the Application filed on 20 September 2011 is dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PERTH |
DNG 53 of 2011
| DZABR |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| DOMINIC LENNON IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER |
Second Respondent
REASONS FOR JUDGMENT
This is an application pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) for a declaration and injunction in relation to a decision of a certain Independent Merits Reviewer (the “IMR”) that the applicant did not meet the criteria for a protection visa set out in s.36(2) of the Act and recommending that the applicant not be recognised as a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol.
In DZABS v Minister for Immigration & Anor [2012] FMCA 297 I considered the nature of the jurisdiction the Court exercises in such applications in the light of the decisions of the High Court of Australia in Plaintiff M61/2010E v Commonwealth of Australia; Plaintiff M69 of 2010 v Commonwealth of Australia [2010] HCA 41 and the decision of the Full Court of the Federal Court in SZQDZ v Minister for Immigration and Citizenship [2012] FCAFC 26.
For the Reasons I gave in that decision, especially at [50] to [64], I came to the conclusion that the real task of the Court in such applications is to determine whether a future decision of the First Respondent made in reliance upon the IMR decision would be one that is vitiated by jurisdictional error. That remains my view.
The time limit referred to in s.477(1) of the Act has no bearing upon this application.
In determining whether the future reliance by the Minister on the IMR decision would be vitiated by jurisdictional error I will have regard to the explication of that kind of legal error contained in the High Court decisions of Craig v The State of South Australia [1995] HCA 58 and Plaintiff S157/2002 v The Commonwealth of Australia (2003) 211 CLR 476.
At the hearing before me the applicant sought to advance only that ground contained in paragraph 1(i) of the Amended Application filed on 2 February 2012.
I here set out that ground in full:
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 the decision was affected by an error of law.
PARTICULARS
In that 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 Application 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 and/or a central element of the applicant’s claim
i) The Second Respondent misconstrued and/or misunderstood the Article 1A(2) test and/or the “relocation test” and/or asked the wrong question and/or identified the wrong issue by not first addressing the question of the Applicant’s place of residence/the place where he lived when he left Afghanistan (being Kabul and not Dai Kundi) and considering whether the Applicant had a well-founded fear of persecution if he were to return there before considering the reasonableness of relocation within his country of nationality and/or failed to correctly apply the law in relation to the relocation test by not taking into account the relevant indicia of what constitutes the place of residence before looking at internal flight alternatives.
The applicant is an off-shore entry person (see s.5 of the Act).
He is a Hazara person from Afghanistan who practices the Shia variety of the Islamic faith.
Importantly, he has lived outside of Afghanistan since 1995.
He was born in 1973 and lived in the Dai Kundi Province of Afghanistan from his birth until 1983. He then lived in an area of Kabul from 1983 to 1993. He lived in Iran from 1993 until 1996.
He was deported from Iran to Afghanistan but instead took up residency in Pakistan in a city called Quetta. He lived with other Hazaras in Quetta.
He arrived in Australia on 26 March 2010.
He spent the last 13 years of his adult life before arriving in Australia living in Pakistan.
The IMR found that the applicant was a citizen of Afghanistan and in particular that his place of origin is Dai Kundi. The IMR specifically asked himself whether Dai Kundi (which was formerly a part of Oruzgun Province) or Kabul was his place of origin. The reviewer finds at [84]:
I have decided that Dai Kundi is his place of origin as he and his agent have referred to that area as his place of origin. Furthermore in her submission of 23 April 2011 the agent treats Dai Kundi as the place of origin and discusses Kabul in the context of relocation (albeit arguing that Kabul is not a suitable city for relocation by the claimant). Having re-examined all the evidence and submissions it is clear to me that whilst the claimant spent about 12-13 years in Kabul, Kabul was the place to which the family had fled and that Dai Kundi was and is the claimant’s place of origin.
The IMR went on to reject the applicant’s claim for refugee status on all of the grounds advanced by him, namely: the imputed political opinion said to arise from being a member of his father’s family who had been Communist; his membership of a social group being returnees from the West; his imputed political opinion arising from his being a returnee from the West; his membership of a political social group being failed asylum seekers; his imputed political opinion as a failed asylum seeker; and his imputed political opinion as a supporter of the current Afghan Government and Coalition forces.
Each of these claims but especially the claim relating to imputed political opinion was tied up with his account of his brother Ishaq’s disappearance and presumed death in 2008 and his concerns in relation to a former business associate of his father in Kabul by the name of Habibullah, from whom he and his brother had sought payment of the sum of $US30,000 as being money owed to them from the conduct of that business following his father’s decease.
All of the applicant’s claims for refugee status based as they were on various Convention nexuses were rejected.
The IMR did not reject the possibility that the applicant would still be at risk of serious harm from Habibullah if he were to return to Kabul although he considered the harm did not have a Convention “characteristic” [CB 326].
It is clear that an important part of the rejection of all of the claims was the IMR’s view, based upon access to country information, that Dai Kundi was a region that was 86 per cent Hazara and that the applicant would not have been denied access to state protection in Dai Kundi and that the country information was, generally speaking, cautiously optimistic concerning the future of Hazaras, especially in that area. In particular, the IMR was not satisfied that the country information supported claims that the Taliban or other non-state actors or the state specifically targeted Hazaras in Dai Kundi on a systematic or discriminatory basis.
The observations the IMR makes in relation to the circumstances that would attend any taking up of residence in Kabul by the applicant were not material to the outcome of the exercise because the application was assessed on the basis of the applicant returning to the Dai Kundi Province. No occasion arose in the decision for the application of any principles relating to relocation to another region within Afghanistan. The assumption was made that he would return to Dai Kundi. Dai Kundi was where he was born and spent the first 10 years of his life. He spent a similar period of time in Kabul but an even greater period of time in Pakistan. The decision of the IMR to regard Dai Kundi as his place of origin before assessing his refugee claim was rational and reasonable, though if the IMR had assessed Kabul as his place of origin that still might have been described as rational and reasonable, at least if the applicant and his advisor had not promoted the contrary position. He could just as rationally and reasonably assessed Kabul as his place of origin.
The complaint is made that jurisdictional error attended the decision to regard Dai Kundi as his place of origin. It is said that the IMR ought to have regarded Kabul as his place of origin and then considered the reasonableness of his relocation within the country of Afghanistan in the light of the findings in relation to Kabul. That, at least, is my understanding of the argument put in relation to this issue.
There is a particularly helpful discussion of the so-called “relocation principle” in one of the decisions on which the applicant relied namely SZQEN v Minister for Immigration and Citizenship [2012] FMCA 387. It is a decision of Yates J sitting as an Appeal Court from a decision of a Federal Magistrate and is therefore binding on me.
His Honour says at [28]:
The question of relocation arises when a claimant for refugee status, having a well-founded fear of persecution in his or her home region, can nevertheless avail himself or herself of real protection elsewhere within that country of nationality …
Reference is then made to the decision of Black CJ in Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437. His Honour proceeds in that same paragraph:
In those circumstances, subject to the reasonableness of relocation, the claimant is not a “refugee” for the purposes of Article 1A(2) of the 1951 Convention, as amended.
Reference is then made to the High Court discussion of the relocation principle by the plurality of the High Court in SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18 and the way in which it places the matter of relocation within the Convention definition of refugee by adopting the process of reason in the classic statement of the relocation principle by Lord Bingham of Cornhill in Januzi v Secretary of State for Home Department [2006] 2 AC 426. The passage (at [7] of his Lordship’s decision) is itself set forth at [30] and I do not propose to restate it here.
That passage, as his Honour notes, makes clear that the relocation must be reasonable. As his Honour says at [35]:
The authorities brought to my attention in which the relocation principle has been discussed all seem to proceed on the basis that relocation arises when the claimant’s well-founded fear of persecution is with respect to a place that can be described as the claimant’s own home region and that the option of relocation is one directed to an area within the country of nationality that cannot be described as the claimant’s own home region. It is in this context that the specific requirement of “reasonableness” has come into play. This position is exemplified, for example in Randhawa and SZATV (and the cases referred to therein), as well as in Januzi. In each case the question was whether it was reasonable for the claimant to be relocated to a place within the country of nationality that was not the claimant’s home region.
The applicant is this case is contending that the IMR ought to have regarded Kabul as the applicant’s place of origin. Had he done so, then, on the basis of the country information the outlook for Hazaras was much worse there than it was in Dai Kundi and the risk of persecution by non-state agents associated with Mr Habibullah was much greater. In any event, it is said, it is an error of a jurisdictional nature for the Minister to rely (or for there to be the possibility of future reliance) on a report which makes this error in identification of the place of origin.
On this reasoning, the consideration of the applicant’s return to Dai Kundi could only have arisen in the context of the application of the relocation principle and that would have involved the application of the test of reasonableness.
In SZQEN (supra) Yates J was dealing with an argument that suggested error in an IMR in not applying the “reasonable test” in respect of the applicant’s return to his home district. The Federal Magistrate had rejected that argument and Yates J agreed with him (see the passage set out at paragraph 27 hereof). His Honour went on at [38] to say:
In proceeding on this basis I do not think that the reference in the cases to “home region” or “home area” (or similar expressions) is to be given a narrow or restrictive meaning to refer, for example, only to the place where the claimant happens to be living at the time of the feared persecution, or that a “home region” or “home area” is necessarily limited to one location if similar and substantial ties exist at another location that would also appropriately categorise that location as a “home region” or “home area” of the claimant. Whether such ties exist and whether a particular location can be appropriately categorised as a “home region” or “home area” are matters of fact.
Ultimately his Honour agreed with the Federal Magistrate in that case that a challenge to the IMR finding that Helmand Province and not Jaghori, was the applicant’s home district was impermissible as constituting the embarkation on a merits review of the IMR decision. Only if it were accepted that Helmand was the home district, contrary to the IMR finding, would the evaluation of Jaghori as a place of return warrant the application of the test of reasonableness, it being in that event an area of internal relocation.
Here the complaint is the same; the applicant says that Kabul ought to have been regarded, contrary to the IMR finding, as the home district and Dai Kundi evaluated as an area of potential internal relocation. I consider that I am in truth being invited to reconsider the factual conclusion reached by the IMR as to Dai Kundi being the home district rather than Kabul and that such an invitation is an inappropriate basis upon which to exercise the power of judicial review, but, even leaving that issue to one side, I would consider the exercise involved in this case in assessing which of two or more competing regions within a country to be a “home district” to be a sterile exercise.
A person is a refugee only if they are outside of their country of nationality and unable or unwilling to avail themselves of the protection of that country for specific reasons identified in Article 1A (2). It will often be obvious from the way in which the claim for refugee status is filed or from the history provided by the claimant or by virtue of his membership of a race or his practice of a religion that his return to the country would be to a specific region of it. The Convention criteria are applied to the factual situation which arises naturally from that history and if a return to that home region of the country to which a return would ordinarily be expected is not possible on account of a well-founded fear of being persecuted there, then an issue arises as to whether internal relocation to another part of the country is possible i.e. whether such an internal relocation would be such that there would not be a basis for such well-founded fear in that other region of the country.
As Yates J pointed out in SZQEN (supra) the exercise of classifying an area as a “home district” should not be conducted narrowly or rigidly. It is certainly not a factual finding that needs to be made as a precursor to the application of the Convention criteria.
If an applicant has been absent from his country of nationality for a long time, a district which might formerly have been taken to be his district of origin may have ceased to exist; or there may be two or more districts within the country in which an applicant has spent significant periods of his life or has family or has religious or racial connections. Furthermore, there will be many cases where a district or districts within the country of nationality will not even be delineated by the decision-maker who may apply the Convention criteria against the country as an entire or homogonous entity.
When the IMR in this case undertook the task of determining what was the applicant’s district of origin he was doing no more than explicating his understanding from the material furnished to him as to what part of the country the applicant could be expected to return.
This case involves an applicant who, before coming to Australia, lived for 15 years outside of his country of nationality in any event. He lived in Kabul for 10 years prior to his departure for Pakistan and the reasons for that were related to his family being regarded as Communists in Dai Kundi and Kabul being an area in the control of the Communist Government. That Communist Government has not been extant in Kabul or in any other part of Afghanistan for several decades now. It was in that context that, fortified by the applicant’s own account of his origins, that the IMR decided to evaluate his claim for refugee status against the likelihood of his returning to Dai Kundi where he was born and where he spent the first ten years of his life and which is, on the country information, an area heavily populated by Hazara.
The suggestion that the IMR fell into error by proceeding in that way rather than deciding to regard Kabul as having obtained the status of “home district” and evaluated the Convention criteria on that basis in my view is without merit. It would be inconsonant with the detail and tenor of all that the applicant had to say about his background in Afghanistan. As is usually the case, the claim was evaluated in the first instance on the basis of the applicant returning to that part of his country of origin which naturally emerged from his account.
In any event, given the detailed findings of the IMR as to why the applicant was not at risk of persecution for a Convention reason in Dai Kundi and of the findings made on the strength of the country information, even if the exercise had been undertaken in the first instance of regarding Kabul as the place to which the applicant would return (contrary to the commonsense conclusions which are to be derived from the applicant’s narrative), then Dai Kundi is unlikely to have been regarded as an area to which relocation was unreasonable, for those same reasons.
The applicant was in no way disadvantaged by the IMR’s selection of Dai Kundi instead of Kabul as the district of origin. One way or another, either in the first instance or in furtherance of the relocation principle, Dai Kunda was bound to be evaluated against Convention criteria.
In any event, as previously discussed, the ground advanced on the review, in my view, is an invitation to re-evaluate the merits of the factual findings of the IMR and I regard that as an impermissible function of judicial review.
The application will be dismissed.
I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of Lindsay FM
Associate:
Date: 29 June 2012
6
2