Minister for Immigration v MZZGD

[2014] FCCA 60

FEDERAL CIRCUIT COURT OF AUSTRALIA

MINISTER FOR IMMIGRATION v MZZGD & ANOR [2014] FCCA 60

Catchwords:
MIGRATION – Application for judicial review of Refugee Review Tribunal decision – alleged jurisdictional error in consideration of issue of relocation to Kabul – Tribunal correctly quoting and applying applicable law – application dismissed.

Legislation:  

Migration Act 1958 (Cth), ss.36(2)(aa), 36(2B)(a)

Minister for Immigration v MZZEV & Anor [2014] FCCA 22
SZATV v Minister for Immigration & Citizenship (2007) 233 CLR 18
SZFDV v Minister for Immigration & Citizenship (2007) 233 CLR 51
MZYXS v Minister for Immigration and Citizenship [2013] FCA 614
Januzi v Secretary of State for the Home Department [2006] 2 AC 426

Applicant: MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent: MZZGD

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: MLG 178 of 2013

Judgment of: Judge Burchardt

Hearing date: 24 October 2013

Date of Last Submission: 24 October 2013

Delivered at: Melbourne

Delivered on: 23 January 2014

REPRESENTATION

Counsel for the Applicant: Mr Kennett SC

Solicitors for the Applicant: Australian Government Solicitor

Counsel for the First Respondent: Mr Horan

Solicitors for the First Respondent: Victoria Legal Aid

Counsel for the Second Respondent: No appearance

ORDERS

1. Pursuant to r.7.01 of the Federal Circuit Court Rules 2001 (Cth), the name of the applicant be amended to “Minister for Immigration and Border Protection”.

2. The application be dismissed. 

3. The Applicant pay the First Respondent’s costs.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT MELBOURNE

MLG 178 of 2013

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Applicant

And

MZZGD

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introductory

1. By an amended application filed 31 July 2013, the applicant Minister seeks judicial review of the decision of the Refugee Review Tribunal (“the Tribunal”) dated 9 January 2013.  The applicant says in substance that the Tribunal fell into jurisdictional error in its consideration of whether it was reasonable for the first respondent to relocate to Kabul.

2. The particulars of this error are constituted, it is asserted, by the Tribunal relying on general information concerning the economic situation of Hazaras in Kabul divorced from consideration of the specific circumstances of the first respondent and without limiting such reliance to the issue of whether relocating to Kabul was practicable for him.  Further, it is submitted that the Tribunal fell into error in taking into account the occurrence of insurgent attacks in Kabul without making any finding as to how that issue bore upon the specific circumstances of the first respondent.

3. It is further put that in placing reliance on these matters, the Tribunal took into consideration irrelevant matters. 

4. The first respondent, by way of contrast, says that when read fairly and as a whole, the Tribunal’s reasons for decision show that it did not fall into such error.

5. For the reasons that follow, I agree with the first respondent and the application will be dismissed.

The Materials Before the Tribunal

1. It should be noted this decision may well, in its format, closely resemble a decision in another matter recently heard by the Court, MZZEV.  The Tribunal’s reasoning in that case closely resembled that in this one and it is therefore inevitable that there will be an element of similarity in the two decisions.  I should, however, emphasise that I have had no regard to my reasons for judgment in the other matter and have not revisited them in any way while preparing this judgment.

2. The first respondent said but little in his entry interview.  At Court Book “CB”4, there are recorded the details of the applicant’s family in Afghanistan, all of whom live in Jaghori (although his father, marked as living in Jaghori was by this time already dead).

3. At CB18, the first respondent recorded his fear of persecution in Afghanistan, essentially because of his Hazara ethnicity and Shia religion.

4. At CB23, the first respondent asserted:

   “If I return to AFGHANISTAN, my life could be in danger – there is not many jobs in JAGHORI, so I would have to try and find work somewhere else and I might get killed by Taliban if I do…”

5. He repeated that because he is Shia and Hazara, it makes things dangerous.

6. At CB52-57, the first respondent’s statutory declaration is set out.  The statutory declaration confirmed the death of his father “about two years ago” (paragraph 16, CB54).  It confirmed that the first respondent had worked in Iran from where he was deported in 2011.  He repeated the concern of lack of employment opportunities in Jaghori and at paragraphs 21-22, CB55, the applicant said:

   “21.  I am the eldest male in my family and it is my job to support my family, which is very difficult because I have very little education and few skills that I can use in Afghanistan.  In Iran I worked in construction but there is no need for tilers or labourers in my village because there is no construction going on. 

   22.  When I returned to Afghanistan from Iran last year I was unemployed for 8 months.  I could not get a job in Jaghori and it was too dangerous to risk travelling outside Jaghori to find work.  If I had to drive for work outside Jaghori it would involve exposing myself to danger and harm on a daily basis.”

7. At paragraph 36 of his statement, CB56, the first respondent stated:

   “The journey out of Jaghori is very dangerous.  If we were to make it safely to Kabul, it is extremely expensive to live in Kabul and unemployment is very high.  Even if I was able to get a job I don’t think I could support my family of 6.  Jobs are poorly paid.”

8. The Delegate’s decision is at CB133-152. It is sufficient for these purposes to note that the Delegate found the first respondent a credible witness but, in the ultimate and on balance, considered it would not be unduly harsh to expect the first respondent to relocate to Kabul and for that reason he did not satisfy either the Refugees Convention or complementary protection criteria in s.36(2)(aa) of the Migration Act 1958 (“the Act”). 

9. The first respondent filed a substantial tranche of submissions together with copious country information (CB168-245).  I note that at CB171, paragraph 14, the submissions said:

   “(First respondent) explains and maintains that he does not know anyone in Kabul, and he does not know how to live there.  He knows very little about Kabul because he has never lived there and does not know anyone there...”  

The Tribunal’s Decision

1. The Tribunal introduced to the application for review and set out the relevant law at CB251-254.  In view of the criticisms advanced by the applicant of the Tribunal’s decision in relation to the complementary protection provision, it is appropriate to set out what the Tribunal said about the law in this field.  At paragraphs 20-21, the Tribunal said (CB254):

   “20. There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.

   21. Under s.36(2B)(a) of the Act, there is taken not to be a real risk that an applicant will suffer significant harm in a country if the tribunal is satisfied that it would be reasonable for the applicant to relocate to an area of a country where there would not be a real risk that the applicant will suffer significant harm. That relocation must be ‘reasonable’ is also a requirement when considering the definition of ‘refugee’ and the tribunal draws guidance from the judgments of the High Court in SZATV v MIAC and SZFDV v MIAC which held that whether relocation is reasonable, in the sense of ‘practicable’, must depend upon the particular circumstances of the applicant and the impact upon that person of relocation within his or her country: SZATV v MIAC (2007) 233 CLR 18 and SZFDV v MIAC (2007) 233 CLR 51, per Gummow, Hayne & Crennan JJ, Callinan J agreeing.”

2. The Tribunal went on at CB254-255 to consider the claims and evidence before it and to record the matters disclosed at the hearing. 

3. The first respondent’s claims were recorded concisely.  He was noted to be a Hazara Shia born in 1990 in the Jaghori District.  “He worked as a shepherd until 2008 when he went to work in Iran as a cement mixer and tiler.  He was deported to Afghanistan in 2011 and was unemployed until his departure in February 2012.  His mother and five younger siblings reside in Afghanistan.  He has been engaged to be married since he returned from Iran but does not have wedding plans” (paragraph 24, CB254-255).

4. The Tribunal noted the death of the first respondent’s father following an endeavour to go to Kabul to get medical treatment, which was prevented by the Taliban.  The Tribunal noted a lack of employment opportunities in Jaghori and that the first respondent would have to travel on Taliban controlled roads to get work.

5. The matters recorded at the hearing essentially repeated and confirmed the matters already asserted.

6. At CB256-275, the Tribunal set out extensive country information and then proceeded to set out findings and reasons from CB275-280.

7. The Tribunal found against the first respondent insofar as he had a generalised claim to fear persecution as a result of Taliban insurgency targeting Hazara Shias (paragraph 76, CB275).

8. The Tribunal also found that bomb attacks against Hazaras, generally, in Kabul and Mazar-e-Sharif were not likely and were not such as to give rise to the first respondent facing a real chance of persecution (paragraph 78, CB276).

9. The Tribunal noted that it found the first respondent to be a very credible witness and having dealt with the first respondent’s history and country information found at paragraph 79 (CB276):

   “…Based on this information and the lack of targeting him in the past, I therefore do not accept that the applicant in Jaghori faces a real chance of persecution, now or in the reasonably foreseeable future on account from the Taliban, Lashkar-e-Jhangvi or any other Sunni group.”

10. The Tribunal next considered whether the first respondent faced a real chance of persecution for a Convention reason on the roads surrounding Jaghori.  At paragraph 83, CB277-278, the Tribunal found:

    “…I find that there is not a real chance that the applicant in his individual circumstances would face serious harm amounting to persecution from the Taliban or anyone else for the essential and significant reasons of his race, religion and imputed political opinion whilst travelling on the roads surrounding Jaghori…” 

11. The Tribunal then continued and dealt with the issue of complementary protection.

12. At paragraph 85-86 (CB278), the Tribunal said:

    “85.  I have found that the applicant does not face a real chance of persecution for a Convention reason on the roads surrounding Jaghori.  However, the country information indicates substantial amount of targeting of persons on the roads of persons of all ethnic groups for reasons associated with criminality by the Taliban and other groups.  Given this information and my findings regarding the applicant and his family’s need to travel outside Jaghori, I find that there are substantial grounds for believing that as a necessary and foreseeable consequence of him being removed from Australia to Afghanistan that there is a real risk the applicant will suffer significant harm on the roads surrounding Jaghori.  This significant harm could include cruel or inhuman treatment or punishment or degrading treatment or punishment.  This harm is however localised.

    86.  I have considered whether the significant harm the applicant faces a real risk of is one faced by the population of the country generally and is not faced by the applicant personally under s.36(2B)(c).  This is a peculiarly worded provision as it is difficult to imagine a harm that is faced by a population of a country generally and not by a person personally.  The explanatory memorandum and second reading speech that accompanied the introduction of the complimentary protection provisions provide little or no assistance in its interpretation and application.  The explanatory memorandum comments that the “danger of harm must be personal and present” whilst the second reading speech states that a “personal or direct risk can be found in instances where the significant harm is faced by a broad group, so long as that harm is personally faced by the person seeking protection”.  In the circumstances of this case, the country information that I have given weight to indicates that persons of all ethnic groups (i.e. the population of the country) face the real risk of harm on the roads but it is also a real risk that faces the applicant personally in his particular circumstances as someone who would need to travel on these roads.  Accordingly, I find that the applicant is not excluded by the operation of s.36(2B)(c).”

13. The Tribunal continued at paragraphs 88-90 (CB279-280):

    “88.  Section 36(2B)(a) provides that there is not a real risk a person will suffer significant harm if it would be reasonable for the person to relocate to another area of the country where there would not be such a real risk.  The harm that the applicant faces is localised to roads surrounding his home in the Hazarajat.  Having regard to the country information concerning the treatment of Hazaras and country information that indicates that the security situation is relatively good in Kabul, I do not accept that he faces a real risk that he will suffer significant harm in Kabul.  Given its position as the capital city, I do not accept that the applicant would have a need to travel outside it and expose himself to the dangers of the roads.

    89.  I have had regard to the fact that Hazaras now constitute between 25%-40% of the population of Kabul and that there is some evidence a growing middle class and the views of the human rights contact that Kabul has a cohesive Hazara community and that it would be relatively easy for new arrivals to integrate.  I have also had regard to the fact that Australia has funded the IOM to provide individually tailored reintegration assistance plans for Afghan returnees.  I have also had regard to the fact that the applicant has some experience of living outside his home area in Iran and has work skills in construction.

    90.  However, there are a number of factors that in my opinion outweigh this evidence and make it unreasonable for the applicant to relocate to Kabul to avoid the real risk of significant harm on the roads around Jaghori.  These are:

    ·    That the applicant has no family links in Kabul and was only there for two brief periods where he stayed in a hotel.  I note that the UNHCR Guidelines stress the importance of the availability of traditional support mechanisms, such as relatives and friends able to host displaced individuals.

    ·    There is a huge Hazara underclass in Kabul that does have access to clean water or electricity and that it is difficult to find accommodation because rents are very high.  It is also reported by the UNHCR that there is widespread unemployment in urban areas that limit the ability of a large number of people to meet their basic needs.  There is also evidence of the deaths of children in refugee camps and the inadequate response of government and aid agencies.

    ·    Notwithstanding, Kabul is safer than other parts of the country there is evidence of a number of insurgent attacks including the Ashura Day attacks.  Though this is not sufficient in itself to establish a real risk that the applicant would suffer significant harm, the existence of these attacks and the limited danger they pose to the applicant contributes to the unreasonableness of relocation.

    ·    That the applicant has a parent and five younger children to support making it more difficult for him to successfully adapt to and integrate into Kabul.

    ·    The applicant lived in a village and rural areas in Iran and in village in Afghanistan and has limited experience in living in a city.”

14. The Tribunal went on to conclude that it was not reasonable for the first respondent to relocate to Kabul, and he was therefore not excluded by the operation of s.36(2B)(a). The Tribunal therefore concluded that the first respondent met the complementary protection criteria in s.36(2)(aa) of the Act.

The applicant’s case – ground 1

The Tribunal asked itself the wrong question, and applied the wrong test, in determining whether (for the purposes of s 36(2B)(a) of the Migration Act 1936) it was “reasonable” for the First Respondent to relocate to Kabul, in that:

a)it placed reliance on general information concerning the economic situation of Hazaras in Kabul.

(i)    divorced from any consideration of the specific circumstances of the First Respondent, and

(ii) without limiting such reliance to the issue of whether relocation to Kabul was practicable for the First Respondent; and

b)it took into account the occurrence of insurgent attacks in Kabul without making any finding as to how that issue bore upon the specific circumstances of the First Respondent.

1. The applicant submits that the internal relocation principle in s.36(2B)(a) of the Act may be different from the equivalent principle which applies as an element of the concept of a refugee under the Refugees Convention. Nonetheless, it was submitted that the case law as to relocation developed in the Convention context was persuasive, and that “The term ‘reasonable’ in s 36(2B)(a) should therefore be understood as taking its content from the internal relocation principle under the Refugees Convention”, (applicant’s written submissions filed 10 October 2013, paragraph 15).

2. Reliance was placed in this regard on the decision of Marshall J in MZYXS v Minister for Immigration and Citizenship [2013] FCA 614 at [39].

3. Counsel for the first respondent submitted that the matter was not so clear, but in my opinion, Marshall J’s observations are on point, and I am required to apply them.

4. The gravamen of what the applicant had to say both in written and oral submissions is summed up in the proposition that the Tribunal erred by considering living conditions in a general way, and failing to make an appropriate comparison between the circumstances the first respondent would face in Kabul and in Jaghori (see applicant’s written submissions, paragraph 21).

5. It was submitted that the reference in paragraph 90 of the Tribunal’s decision to the Hazara underclass in Kabul (CB279-280), the security situation in Kabul, and the first respondent’s need to provide for his family were matters that were indications that the Tribunal had simply not addressed the task it was required to address.

6. Counsel for the first respondent submitted, obviously, quite the opposite. 

7. Both counsel referred me to the relevant case law in this matter.  But as I see it, while differently expressed, in the ultimate everyone agrees that the test is not that set out in what was described by Lord Carswell in Januzi v Secretary of State for the Home Department [2006] 2 AC 426, as the “Hathaway rule as applied in New Zealand” (at [67]).  It is not a question of whether the social or economic conditions in a country comply with accepted universal norms.

8. It is a matter of looking at the personal circumstances of the first respondent, and deciding whether it is reasonable, in the sense that it is practicable, for them to relocate.

1. In the end, I think this matter can be put shortly, despite the skill and energy of counsel for the applicant’s submissions.  The Tribunal was well seized of what the test for complementary protection was, and referred to the same authorities (SZATV and SZFDV) as counsel did. 

2. While superficially there is a measure of attraction in the applicant’s argument that the references to the Hazara underclass, the security situation and the first respondent family are made in something of a vacuum, the decision has to be read fairly and as a whole.

3. At paragraph 89 (CB279), the Tribunal set out various matters that would support the proposition that the first respondent could relocate to Kabul.  No criticism has been made of the reference to the 25 to 40 per cent of the Hazara population of Kabul and a growing middle class.  Likewise, the observations about the Hazara underclass are in a sense unspecified.  But it was quite obvious that the Tribunal in my view was referring to the circumstances of the first respondent as he would find them if he was there.

4. Furthermore, while the Tribunal did not find that there was significant insurgent attack in Kabul (and even if this was a wrong finding, it would be an error of fact, not an error of law) the Tribunal nonetheless took this into consideration.  The first respondent is a Hazara.  Attacks have occurred in Kabul.  There is nothing illogical or erroneous in the Tribunal having regard to this matter.

5. Finally, it is put that the first respondent would face difficulties in supporting his family wherever he was, and plainly this is correct.  Indeed the Tribunal was well aware that the first respondent was struggling to provide for his family in Jaghori and made a finding that he was surviving in Jaghori on what his father left him (paragraph 29, CB256).

6. All the Tribunal was doing in my opinion, as in my view it was entitled, if not required, to do, was looking at what the first respondent’s particular situation in Kabul would be.  That is an entirely legitimate forensic exercise in considering whether or not, for the first respondent in his own circumstances, it would be reasonable in the sense of practicable for him to relocate.

7. Both counsel sought at times to take me to either case law, or in the case of the first respondent, extraneous instruments, to work out what the Act means and says. In my view, it is all too easy to get into convoluted reasoning in this area. The High Court has made it plain what the relocation test is. That together with the terms of the statute is what should guide the Court’s conclusions.

8. In my view, the Tribunal did not fall into jurisdictional error as alleged in ground 1 in finding that it would not be reasonable for the first respondent to relocate to Kabul. 

Ground 2

By reason of the matters set out in 1(a) and (b) above, the Tribunal took into account irrelevant considerations in determining whether (for the purposes of s 36(2B)(a)) it was “reasonable” for the First Respondent to relocate to Kabul.

1. In reality, this ground can only be made out in the event that ground 1 is made out.  Since ground 1 has not been made out, it necessarily follows that this ground cannot be made out either.  For the reasons already given, these matters were not irrelevant. 

Conclusion

1. For the above reasons, the application must be dismissed.  I will change the name of the Minister to reflect his new title.  The application is dismissed with costs.

I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of Judge Burchardt

Associate: 

Date:  23 January 2014