MZANX v Minister for Immigration
[2016] FCCA 2564
•6 October 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MZANX v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 2564 |
| Catchwords: INTEGERS OF CLAIM – what that means – extensive review of the authorities on “claim” and “integer”. INTERNATIONAL RELOCATION – relevant legal test – extensive review of the authorities. |
| Legislation: Migration Act 1958 (Cth), ss.36, 414, 477 |
| Cases cited: Abebe v Commonwealth of Australia (1999) 197 CLR 510 Minister for Immigration and Border Protection v SZSCA & Anor [2014] HCA 45 Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164 SZURJ v Minister for Immigration and Border Protection [2016] FCCA 1771 Tran v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 297 Caron Beaton-Wells, ‘Judicial Review of Migration Decisions: Life After S157’ (2005) 33 Federal Law Review, No. 1, 141 Justice Mark Weinberg, ‘Adequate, Sufficient and Excessive Reasons’, speech delivered at Judicial College of Victoria, 4 March 2014 |
| Applicant: | MZANX |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | JILLIAN BARTLETT IN HER CAPACITY AS INDEPENDENT PROTECTION ASSESSMENT REVIEWER |
| File Number: | MLG 2396 of 2014 |
| Judgment of: | Judge Wilson |
| Hearing date: | 19 April 2016 & 20 May 2016 |
| Date of Last Submission: | 20 May 2016 |
| Delivered at: | Melbourne |
| Delivered on: | 6 October 2016 |
REPRESENTATION
| Counsel for the Applicant: | Mr M. Albert |
| Solicitors for the Applicant: | Clothier Anderson & Associates |
| Counsel for the First Respondent: | Mr L. Brown |
| Solicitors for the First Respondent: | Sparke Helmore |
ORDERS
The amended application filed on 8 December 2015 is dismissed.
The applicant pay the costs of the first respondent.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 2396 of 2014
| MZANX |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| JILLIAN BARTLETT IN HER CAPACITY AS INDEPENDENT PROTECTION ASSESSMENT REVIEWER |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By application commenced in this Court on 26 November 2014,
the applicant sought relief against the first respondent (“the Minister”) and against the second respondent, the Independent Protection Assessment Reviewer (“IPAR”), in relation to a decision of the IPAR made on 19 October 2012,[1] more than two years earlier than the date on which this proceeding was commenced.
[1] Court Book filed 7 April 2015 at pp.158-183.
The Minister argued that no jurisdictional error was manifest in the decision of the IPAR. The IPAR filed a submitting appearance.[2]
[2] Notice of Address for Service filed 11 March 2016.
It was common ground that no extension of time was required in this case as this was not a migration decision to which s.477 of the Migration Act 1958 (Cth) (“the Act”) applied and thus no time limits applied. In that regard, both parties relied on the decision of the
Full Court of the Federal Court of Australia in SZQDZ v Minster for Immigration and Citizenship.[3]
[3] (2012) 200 FCR 207.
Synopsis
For the reasons that follow, in my judgment none of the grounds of review have succeeded. I dismiss the application to this Court and I order the applicant to pay the Minister’s costs.
Relevant factual setting
On or about 9 September 2011 the applicant entered Australian territorial waters by boat. He was intercepted and then transferred to Christmas Island. When intercepted the applicant did not hold a visa to enter or remain in Australia. His status was an irregular maritime arrival, as defined in the Act. On 7 November 2011 the applicant applied for a protection obligations determination. On 18 January 2012 a delegate of the Minister made a negative protection obligations determination in relation to the applicant’s application and the delegate referred the matter for an independent protection assessment.
On 19 October 2012 the independent protection assessment assessor determined that the applicant did not meet the criteria for a Protection (Class XA) visa and was not a person to whom Australia had protection obligations under s.36(2)(aa) of the Act.
The application in this Court
The applicant applied to this Court by application filed
26 November 2014. By amended application filed on
8 December 2015, the grounds were recast in respect of ground 1 and the particulars subjoined to that ground. Ground 2 was altered by the inclusion of a particular. Ground 3 was in its original form.
It is as well to set out the amended grounds of review in full –
1. The Second Respondent fell into error in that they failed to take into account an integer of the Applicant’s claims, being whether the applicant had a well-founded fear of persecution for reason of his membership of a particular social group, namely ethnic Hazaras involved in land disputes.
Particulars
a. The Applicant claimed to fear harm from his uncle, Esa, due to a longstanding family conflict.
b. The assessor accepted that the Applicant’s uncle killed the Applicant’s father and that the Applicant had fled Qarabagh because of the conflict. The assessor accepted that the Applicant was at risk of serious harm from his uncle if the Applicant returned to Qarabagh.
c. The Second Respondent failed to consider whether the Applicant was a member of a particular social group, namely Hazaras involved in land disputes.
2. The Second Respondent fell into error in that they (sic) failed to take into account an integer of the Applicant’s claims/and or misapprehended the Applicant’s claims to engage Australia’s Protection obligations under s 36(2)(a) of the Migration Act 1958 (“the Act”).
Particulars
a. The Applicant claimed to fear harm from his uncle, Esa, due to a longstanding family conflict, and in turn claimed Esa had associations with the Taliban;
b. The Second Respondent failed to consider whether the Applicant’s conflict with his uncle in these circumstances would mean that he would be imputed with an ‘anti-Taliban’ political opinion.
c. The Second Respondent also failed to consider whether the Applicant’s uncle would impute a political opinion to the Applicant as the mechanism by which his uncle would motivate the Taliban to cause harm to the Applicant.
3. The Second Respondent fell into error, by failing to consider various objections raised by the Applicant in relation to relocation, when assessing the Applicant’s claims under ‘complementary protection’ for s 36(2)(aa) of the Act.
Particulars
a. The Applicant raised various objections to relocation to Kabul – including political and economic instability; widespread unemployment and limited humanitarian assistance;
b. The Second Respondent considered these objections only for the purposes of assessing whether the Applicant faced a real risk of significant harm in Kabul for the purposes of s 36(2A), however did not consider how these affected the reasonableness of relocation to Kabul in the applicant’s circumstances.[4]
[4] Amended Application filed 8 December 2015.
The hearing of this case spanned a half day on the first day and a further half day on the second day. All points were debated in very considerable detail. Let me at once turn to the grounds of review.
First and second grounds of review – the applicant’s case
In shaping his submissions on those grounds, Mr Albert, counsel for the applicant, contended that the first and second grounds of review concerned three integers of claim that were not considered.
He submitted that those three integers arose squarely from the materials. Mr Albert characterised the matters that arose squarely from the materials as “integers” properly so-called. Counsel for the Minister, Mr Brown, contended at least in relation to the first ground that the putative claim, or integer of a broader claim, did not rise to the level of a “substantial, clearly articulated argument relying on established facts”,[5] citing Dranichnikov v Minister for Immigration and Multicultural Affairs[6] (“Dranichnikov”), Htun v Minister for Immigration and Border Protection[7] (“Htun”) and NABE v Minister for Immigrationand Multicultural and Indigenous Affairs (No 2)[8] (“NABE”) and that the Tribunal did not err on the ground contended for by the applicant.
[5] Transcript of Proceedings, 20 May 2016 at p.5.
[6] (2003) 77 ALJR 1088.
[7] (2001) 194 ALR 244.
[8] (2004) 144 FCR 1.
The legal position was not precisely as Mr Brown contended.
A substantial issue emerged in this case about the lengths and breadths of the applicant’s claim or claims. The task of ascertaining precisely what fell for determination by the Tribunal is frequently problematic in cases under the Act. It is equally problematic ascertaining whether,
by the failure to consider a particular issue the Tribunal has in fact fallen into jurisdictional error. Unlike in the arena of civil litigation where pleadings define the controversy between the parties, as was pointed out by Gleeson CJ in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs,[9] proceedings before the Tribunal are not adversarial so issues are not defined by the pleadings or by any analogous process. There, the Chief Justice held that –
Even so, this court has insisted that, on judicial review, a decision of the tribunal must be considered in the light of the basis upon which the application was made, not upon an entirely different basis which may occur to an applicant, or an applicant’s lawyers, at some later stage in the process (footnote omitted).[10]
[9] (2003) 216 CLR 473 at [1].
[10] Ibid.
In the context of a protection visa, Gleeson CJ said the arguments and evidence of the applicant and the Minister cannot narrow the Tribunal’s jurisdiction to investigate the generality of the claim.[11]
[11] (2003) 216 CLR 473 at [39].
The “claim” that fell to the Tribunal to address was “a substantial, clearly articulated argument relying upon established facts”, as the expression was used in Dranichnikov,[12] and as was considered by the Full Court of the Federal Court of Australia (Black CJ, French and Selway JJ) in NABE.[13] Other authorities at single judge and Full Court level in the Federal Court of Australia have wrestled with the parameters of the constituent elements of an applicant’s “claim”. By way of illustration in Htun[14] Allsop J (as the Chief Justice then was) with whom Spender J agreed, addressed the requirements in s.414
of the Act that the Tribunal considers ‘the claims’ of the applicant stating –
The claim or claims and its or their component integers are considerations made mandatorily relevant by the Act for consideration.[15]
[12] (2003) 77 ALJR 1088 at [24].
[13] (2004) 144 FCR 1, 22 at [61] and [68].
[14] (2001) 194 ALR 244.
[15] (2001) 194 ALR 244 at [42].
The Tribunal is not to limit its determination to the ‘case’ articulated by the applicant if evidence and material which the Tribunal accepts raises a case not articulated. So much was the holding of Merkel J in Paramananthan v Minister for Immigration and Multicultural Affairs[16] as well as by the Full Court of the Federal Court of Australia
(Wilcox and Magwick JJ) in Sellamuthu v Minister for Immigration and Multicultural Affairs.[17]
[16] (1998) 94 FCR 28, 63.
[17] (1999) 90 FCR 287, 293-294.
But if an unarticulated claim is relied upon by an applicant seeking review, the unarticulated claim must be raised squarely on the material available to the Tribunal, according to Cooper J in SDAQ v Minister for Immigration and Multicultural and Indigenous Affairs.[18] As the
Full Court in NABE observed, the use of the adverb “squarely” does not convey any precise standard but it indicates that a claim not expressly advanced will attract the review obligation of the Tribunal when it is apparent on the face of the material before the Tribunal.[19] Such a claim will not depend for its exposure on constructive or creative activity by the Tribunal.
[18] (2003) 129 FCR 137 at [19].
[19] (2004) 144 FCR 1 at [58].
It is true that the Tribunal is not to construe an applicant’s claim or claims as a common law court of law or equity might analyse a claim or claims raised in a pleading. In SGBB v Minister for Immigration and Multicultural and Indigenous Affairs,[20] Selway J referred to the way the Tribunal is not obliged to consider claims not made then famously remarked “[b]ut this does not mean that the application is to be treated as an exercise in nineteenth century pleading”.[21]
[20] (2003) 199 ALR 364.
[21] (2003) 199 ALR 364 at [17].
The settled position nowadays is that stated in NABE.[22] The Tribunal is not required to consider a case that is not expressly made or does not arise clearly on the materials before it. The Tribunal’s obligation is not limited to procedural fairness in responding to expressly articulated claims but extends to reviewing the delegate’s decision on the basis of all the materials before it. Whatever the scope of the obligation,
the Tribunal is not required to consider criteria for an application never made.
[22] (2004) 144 FCR 1 at [61].
To my way of thinking, it would place an impossible burden on the Tribunal to require it to refer to every piece of evidence and every contention made by an applicant, however wrong-headed, peripheral or tangential. For that matter, the Full Court of the Federal Court of Australia in Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs[23] (French, Sackville and Hely JJ) held that the Tribunal is an administrative body operating in an environment which requires the expeditious determination of a high volume of applications. To that I add that the Tribunal is not a court of law and its reasons are not to be scrutinised with an eye keenly attuned to error nor is the Tribunal necessarily required to provide reasons of the kind that might be expected of a court of law. But even a court of law is not required to address every submission advanced in the hearing, as was observed by the Honourable Justice Mark Weinberg in his speech ‘Adequate, Sufficient and Excessive Reasons’.[24] Still less would the Tribunal be expected to provide reasons equivalent to those provided by a court of law, especially when dealing with high volume applications as does the Tribunal.
[23] [2003] FCAFC 184 at [46].
[24] Speech delivered at Judicial College of Victoria, 4 March 2014.
Accordingly, it seems to me that the proper approach in any consideration of the applicant’s contentions in this case is to commence by ascertaining the metes and bounds of the matters the Tribunal was required by law to consider. Dissected, the Tribunal was required to deal with –
a)a “substantial, clearly articulated argument relying upon established facts”;[25]
b)a claim or claims and its or their component integers;[26]
c)evidence and material that the Tribunal accepts to raise a case not articulated;[27]
d)an unarticulated claim that is raised squarely on the material available to the Tribunal;[28] and
e)not an application or claim never made.[29]
[25] Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088 at [24].
[26] See Htun v Minister for Immigration and Border Protection (2001) 194 ALR 244.
[27] See Paramananthan v Minister for Immigration and Multicultural Affairs (1998) 94 FCR 28 and Sellamuthu v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 287.
[28] See SDAQ v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 129 FCR 137 and NABE v Minister for Immigrationand Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1.
[29] See NABE v Minister for Immigrationand Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1.
As Robertson J held in Minister for Immigration and Citizenship v SZRKT[30](“SZRKT”) –
Although ultimately it is the claim which the Migration Act requires to be considered, there are many ways, actual or constructive, of failing to consider the claim.[31]
[30] (2013) 212 FCR 99.
[31] (2013) 212 FCR 99 at [98].
Once the “claim” that the Tribunal had to consider was identified, it fell to the Tribunal to give that claim or those claims “proper, genuine and realistic consideration”, as was canvassed by the High Court in Minister for Immigration and Citizenship v SZJSS.[32]
[32] (2010) 243 CLR 164 at [7].
In a protection visa case, it remains good law that it is for the applicant to advance whatever argument or evidence he or she wishes to advance in support of his or her contention that the applicant has a well-founded fear of persecution for a Convention reason, and that the Tribunal must then decide whether that claim is made out. That proposition emanated from the decision of the High Court in Abebe v Commonwealth of Australia[33] and was recently restated by the Full Court of the Federal Court of Australia (Kenny, Griffiths and Mortimer JJ) in Minister for Immigration and Border Protection v MZYTS.[34]
[33] (1999) 197 CLR 510 at [187].
[34] (2013) 230 FCR 431, 444 at [38].
More recently, a differently constituted Full Court (Gordon, Robertson and Griffiths JJ) in Minister for Immigration and Border Protection v SZSWB[35] held that “[m]oreover, the claim must emerge clearly from the materials”.[36]
[35] [2014] FCAFC 106.
[36] [2014] FCAFC 106 at [33].
The concept of an “integer”
Surprisingly little judicial attention has been devoted to the concept of an “integer” of a claim, as that phrase was coined in Htun. That may explain why in 2013 Robertson J in SZRKT took the view that the authorities illuminated no clear distinction between “claims” on the one hand and “mere” items of evidence on the other. The phrase “integer” seems to have been used interchangeably with “component of claim” (Htun) yet in Tran v Minister for Immigration and Multicultural and Indigenous Affairs[37] (Kiefel, RD Nicholson and Downes JJ) the opportunity for exposition was not taken up as the Full Court of the Federal Court of Australia merely stated that the tribunal was “required to deal with all integers of an applicant’s claim”,[38] without providing elucidation about what an integer was. His Honour Judge Manousaridis has held that an “integer” may be taken to be the equivalent of a material question of fact. His Honour so held in SZURJ v Minister for Immigration and Border Protection[39] that an integer was a meaningful subset of material questions of fact, which, in combination with other meaningful subsets of material questions of fact, ought to lead the Tribunal to conclude in a particular way. In my respectful view, his Honour’s consideration of the subject is accurate. It appears to be one of the only statements of principle on point. The sheer volume of decided migration cases in the federal jurisdiction over the last 10 years has overtaken observations in learned writings of the early millennium of which an example is Caron Beaton-Wells, ‘Judicial Review of Migration Decisions: Life After S157’.[40] So far as my research has uncovered, the consideration given to the subject of integers by his Honour Judge Manousaridis is the best and only treatment on the point.
[37] [2004] FCAFC 297.
[38] [2004] FCAFC 297 at [6].
[39] [2016] FCCA 1771 at [19].
[40] (2005) 33 Federal Law Review, No. 1, 141.
Accepting that the observations of the High Court in Dranichnikov is not the only measuring stick by which a “claim” might be recognised for the purposes of s.36(2)(a) or even s.36(2)(aa) of the Act, Mr Albert argued that three integers arose in this case -
a)
the first integer was membership of a particular social group, ethnic Hazaras, involved in land disputes. It was contended that a family feud left the applicant unusually reliant on state protection, such protection not being provided by reason of his
Hazara ethnicity;
b)
the second integer related to the applicant’s opposition to his uncle, a Taliban supporter, which gave rise to an imputed
anti-Taliban political opinion. In written submissions,[41]
[41] Written submissions of the applicant filed 8 December 2015.
the applicant said the second integer was put impliedly and not expressly; and
c)
the third integer was an imputed anti-Taliban political opinion because of false information provided by the applicant’s uncle,
a Taliban supporter, subsequently provided to the Taliban.
Mr Albert opened his client’s case by arguing that the integer was that the applicant’s uncle would misinform the Taliban that the applicant was anti-Taliban so as to incite the Taliban to act against the applicant.
Mr Albert submitted that a passage from the statement given by the applicant enlivened each of the three integers.[42] The passage was as follows –
I fear that if I was forced to return to Afghanistan I would be at risk of being harmed because I am known to the Taliban and because I am a Hazara.[43]
[42] Court Book filed 7 April 2015 at pp.73-77.
[43] Court Book filed 7 April 2015, p.73 at [3].
The applicant did not identify the harm he feared nor did he state the way in which he was known to the Taliban, nor why his being known to the Taliban represented a basis of fear.
The applicant’s assertions in respect of the first integer
So far as the first integer was concerned (described by Mr Albert as the “land dispute integer”[44]), that integer was said to have arisen from paragraph 8 of the same statement given by the applicant. It was put in the following terms –
This deepened the feud between my father and my uncle”.[45]
[44] Transcript of Proceedings, 19 April 2016 at p.9.
[45] Court Book filed 7 April 2015 at p.73.
The feud that deepened was described in paragraphs six and seven of the applicant’s statement. I took it that way, in any event. Unless the statement is read in that manner, reference in paragraph eight to the phrase “this deepened the feud” was meaningless. In paragraph six,
the applicant spoke of his grandfather devising upon his death a larger portion of the grandfather’s landholdings to the applicant’s father with a smaller portion being given to the applicant’s uncle.
In paragraph seven of the statement the applicant stated that his uncle collaborated with the Taliban by supplying the Taliban with intelligence in the local area. The applicant contended in paragraph eight that those two factors deepened the feud between the applicant’s father and his uncle. Paragraph eight - the assertion that
“[t]his deepened the feud between my father and my uncle” was said to address the land dispute integer, being the first integer.
Further indicia of the first integer was found in the written submission of the Refugee Advice and Casework Service (Aust) Inc (“RACS”) dated 10 August 2012[46] in sections three and four, especially in relation to the mistreatment of Hazaras.
[46] Court Book filed 7 April 2015 at pp.115-135.
The applicant’s assertions in respect of the second integer
So far as the second integer was concerned, Mr Albert submitted that it arose from written submissions dated 25 November 2011[47] provided by RACS to the relevant caseworker following the applicant’s interview on 11 November 2011. Mr Albert submitted that a single phrase in that submission went to the second integer. The sentence was as follows –
Therefore he is protected by the Taliban”.[48]
[47] Court Book filed 7 April 2015 at pp.89-92.
[48] Court Book filed 7 April 2015 at p.90.
That sentence was cited out of context, as I have explained below.
But Mr Albert relied on the further passage as follows –
Either way, the fact that he was not being pursued by the Taliban or the fact that the applicant, his father and family had a real chance of being pursued by the Taliban was and continues to be due to an imputed political opinion as well. This is that they continued to hold an ideology and faith that is inconsistent with that of the Taliban’s.[49]
[49] Ibid.
Mr Albert contended that Hazara people of whom the applicant was one continued to hold an ideology and faith that was inconsistent with that of the Taliban.
The applicant’s assertions in respect of the third integer
So far as the third integer was concerned, the applicant relied on aspects of the protection obligations determination in which the determination recorded a submission on behalf of the applicant to the effect that the applicant and his family had a real chance of being pursued by the Taliban due to the applicant’s race, religion and imputed political opinion that was seen to be inconsistent with that of the Taliban.
Mr Albert also relied in support of his propositions concerning the third integer on the written submission dated 10 August 2012 from RACS to the IPAR. He described the proposition with considerable emphasis, submitting that it was “the single strongest indication of the existence of integer 3”.[50] Mr Albert said he emphasised the point above others. He submitted that the integer arose from RACS’s submission that the applicant’s well-founded fear of persecution arose from –
a)the applicant being Hazara and Shi’a;
b)his imputed political opinion as Hazara, a group considered to be opposed to the Taliban; and
c)the Taliban’s threat being exacerbated by the applicant’s fear that his uncle would report him if he were to return to Afghanistan because the applicant’s uncle had links to the Taliban.
[50] Transcript of Proceedings, 19 April 2016 at p.15.
As further indicia of the third integer, Mr Albert pointed to an additional portion of the RACS’s 10 August 2012 submission that appeared on page 3. It read as follows –
[The applicant] fears that due to [his uncle’s] cooperation with the Taliban, [his uncle] will report him to the Taliban who will seriously harm him on the basis of his race and religion and/or imputed political opinion. [The applicant] understands that
[his uncle] provides information to the Taliban and acts as an informant for them.[51][51] Court Book filed 7 April 2015 at p.117.
As mentioned above, the Minister contended that none of those matters, described by Mr Albert as “integers” ever rose to the level of a “substantial, clearly articulated argument relying upon established facts”.[52]
[52] (2003) 77 ALJR 1088 at [24].
The IPAR’s treatment of the three integers
For the applicant, Mr Albert submitted that the IPAR made no adverse credit findings against the applicant.
So far as the first integer was concerned, the applicant argued that the IPAR, having accepted at paragraph 70 of its reasons that the applicant’s uncle and grandfather had a bad relationship and that some long-standing grudge existed regarding land inheritances, made no finding on that point preferring instead to pass over the point and to move on to a refusal to accept how the applicant might have attributed to him certain political opinions on account of his familial relationship with his uncle. Mr Albert contended that having had the first integer pointed out to the IPAR, the IPAR made a finding on an altogether different issue.
As to the second integer, in paragraph 70 of the reasons of the IPAR, the IPAR stated that it found that the applicant would not be perceived as holding any political opinion, including but not limited to opinion or ideology and faith that was inconsistent with that of the Taliban and/or opposed to Taliban control “arising from his Hazara ethnicity”.[53]
Mr Albert argued that the IPAR failed to deal with the integer,
as raised.
[53] Court Book filed 7 April 2015 at p.176.
As to the third integer, Mr Albert submitted that the IPAR addressed it (and also the second integer) through the prism of ethnicity,
an erroneous course according to Mr Albert. He contended that the IPAR examined the existence of the applicant’s political opinion on account of his Hazara ethnicity and that the IPAR did not examine imputed political opinion, in those terms.
The first and second grounds of review – the Minister’s case
In essence, in relation to the first and second grounds of review the Minister argued that the integers asserted by the applicant were not expressly made and did not arise from the material. Mr Brown submitted that the fact of the claims not having been expressly made on the material was all the more significant in view of the fact that the applicant had legal assistance in the formulation of various submissions to the IPAR.
The Minister’s submissions about the first integer
By way of overview, Mr Brown submitted that a claim to fear harm on the basis of ethnicity was in fact made. However, Mr Brown submitted that the nuanced claim set out in the amended application that was said to have gone unconsidered was not in fact made. Mr Brown conceded that the material revealed evidence of a shooting, of attribution to a connection to the Taliban and of the Taliban’s search for the applicant. However, he argued that those amounted to a claim to fear harm yet the basis for any such fear was not readily apparent. In so far as documentation was produced by the applicant personally, without legal assistance, the Minister submitted that I should construe any such documentation benevolently in favour of the applicant.
Without acknowledging their status as integers, Mr Brown addressed Mr Albert’s propositions (described as “integers” by Mr Albert),
the first being the IPAR’s alleged failure to consider whether the applicant was a member of a particular social group namely Hazaras involved in land disputes. Mr Brown argued that the fear of persecution must be on account of membership of a social group. He said the material was silent on the subject of membership of Hazaras being a reason for persecution. Mr Brown said there was a “complete absence of the causative element”.[54]
[54] Transcript of Proceedings, 20 May 2016 at p.15.
The Minister’s submissions about the second integer
So far as the second integer was concerned, Mr Brown submitted the claim was not made. He said the IPAR made a finding that the applicant’s uncle was an ordinary Hazara landowner and as such,
it could not follow that conflict with the uncle could lead to
anti-Taliban sentiment. Mr Brown said that on its proper construction, paragraph 74 of the IPAR’s reasons revealed that the IPAR concluded that the applicant’s uncle had no particular connection with the Taliban.
The Minister’s submissions about the third integer
As to the third integer, Mr Brown said the case as articulated by
Mr Albert on point was not raised on the material either expressly or by necessary inference.
Consideration of the first and second grounds of review
In view of the fact that counsel arranged their submissions by addressing the first two grounds of review in a compendious manner,
it seems sensible to approach these reasons for judgment on a similar footing, considering each of the three integers when considering each of the first and second ground of review.
The starting point is the approach I should adopt in undertaking this judicial review. There can be no doubt that the points addressed by
Mr Albert were well-considered and challenging. He argued the case extremely well. But the points urged were also very subtle and, at times, called for enormous concentration to follow and to appreciate their full depth. In respect of the three integers, it was necessary to trawl extensively through the material to ascertain precisely what was said in relation to each proposition. On at least one occasion, Mr Albert pointed out that no consideration had been given by the IPAR to the relevant so-called integer. One explanation for the absence of consideration of that so-called integer was that the point was so subtle it went unnoticed. Mr Brown construed that eventuality as amounting to the claim not being made at all.
In Collector of Customs v Pozzolanic Enterprises Pty Ltd[55] (“Pozzolanic”), the Full Court of the Federal Court of Australia cautioned against the reasons of the decision under review being construed minutely and finely with an eye attuned to the perception of error. That decision has stood for over 23 years. It has been cited approvingly in countless cases, at single judge level in this Court,
in the Federal Court of Australia and at intermediate appellate level.
Its authority is beyond any doubt.
[55] (1993) 43 FCR 280.
If I were to engage in the analysis postulated by the applicant, I would be doing precisely what the Full Court in Pozzolanic said a court should not do, namely examining the decision under review minutely with an eye attuned to the perception of error.
The concept of an “integer” of the claim emanated from the decision of the Full Court of the Federal Court of Australia in Htun. Precisely what is and what is not an “integer” of a claim, properly so-called,
will depend on the facts of the case. In this case, the Minister resisted the notion that any of the three issues described as the first, second and third integers by Mr Albert arose in this case. At its most basic,
the Minister contended that no claim was made in terms that approximated the three integers alleged. It is necessary therefore
to examine each integer to ascertain whether, according to NABE,
the claim in respect of which the integer was said to be part was raised in the material.
Consideration of the first integer
In support of the first integer, the applicant asserted that it was mentioned in the written submissions dated 25 November 2011 from RACS to the relevant departmental officer. To my way of thinking the applicant cited a passage from those submissions out of context. It was not correct to quote the sentence “[t]herefore he is protected by the Taliban”[56] as if it was a stand-alone proposition of an accepted fact. That sentence was not put on that basis. Instead, it was put as part of one of two theories postulated by RACS. It is necessary to set out in full the context of the two theories –
However, if one accepts the applicant’s evidence one can discern why his uncle, who being an Hazara himself, was not being persecuted by the Taliban the same way the applicant had feared. There are two plausible answers. First the applicant’s uncle might have abandoned his faith and subscribed to the Taliban ideals. Therefore he is protected by the Taliban. Second, the applicant’s uncle might have lived a life in disguise, ie., living a life in a way approved by the Taliban in order to protect himself from being harmed by them.[57]
[56] Court Book filed 7 April 2015 at p.90.
[57] Court Book filed 7 April 2015 at pp.89-90.
It was erroneous for the applicant to contend that the phrase “[t]herefore he is protected by the Taliban”[58] was sufficient to require the IPAR to examine the point in real detail by giving earnest consideration to it. The phrase was not a statement of fact. It was an hypothesis only. I find it difficult to accept that the IPAR was required to give consideration to an hypothesis thrown up by RACS as a point of possibility only. Still less do I accept that any hypothesis, expressed in the terms quoted above, was elevated to having the status of an integer of a claim. In my view, the passage quoted above was little more than a theory espoused by RACS in a manner that went nowhere.
[58] Court Book filed 7 April 2015 at p.90.
The first so-called integer was not a claim raised squarely on the material. To my mind, the IPAR treated it in such manner as was required by law having regard to the way that so-called integers emerged in the material. It seemed to me that the IPAR’s acceptance in paragraph 70 of the IPAR’s reasoning that the applicant’s uncle and the applicant’s grandfather shared a bad relationship was correct.
That acceptance was based on long-standing bitterness arising out of land inheritances. The applicant did not complain about the propriety of the IPAR’s examination of country information concerned with the mistreatment of Hazaras. But the applicant asserted that the IPAR’s error lay in linking this integer to no more than a familial relationship.
It seemed to me that the first so-called integer was so very subtle that it either did not arise, as Mr Brown contended, or if it did arise, then the IPAR was justified in treating it in the way that the IPAR did. Having spent many hours since this judgment was reserved in a careful consideration of Mr Albert’s thorough submissions on this point, I have encountered very considerable difficulty elevating the proposition advanced by him as the first integer to such a status. It did not assume the character of an integer of a claim.
In addition, the Minister correctly submitted that nothing indicated a causal link between the harm with membership of the particular social group of ethic Hazaras involved in land disputes. Several decisions of the High Court of Australia have insisted on there being sufficient evidence of the existence of such a causal link. Those decision include Applicant A v Minister for Immigration and Ethnic Affairs,[59] Chen Shi Hai v Minister for Immigration and Multicultural Affairs[60] and Minister for Immigration and Multicultural Affairs v Khawar[61] (“Khawar”). To my way of thinking the causal link which those cases discussed was absent in respect of the so-called first integer.
[59] (1997) 190 CLR 225.
[60] (2000) 201 CLR 293.
[61] (2002) 210 CLR 1.
The applicant did not demonstrate the existence of jurisdictional error on either the first or second ground of review under the rubric of the first integer.
Consideration of the second integer
Let me now turn to the second integer.
For reasons similar to those relevant to the so-called first integer, to my way of thinking the proposition advanced by Mr Albert did not arise as a “claim” according to principles espoused in NABE and the IPAR’s disposition of the issue did not reveal error.
The IPAR did not accept that the applicant would be attributed or imputed as having any political opinion arising from his being a nephew of his uncle. To my mind, that finding was open. The applicant did not complain about that finding being open. However, the applicant contended that the IPAR erred in finding that the applicant would not be perceived as holding any political opinion including one that was inconsistent with the political opinion of the Taliban, arising from
his Hazara ethnicity
The gravamen surrounding the so-called second and third integers was the way the IPAR examined “through the prism of ethnicity”[62] the applicant’s opposition to his uncle (not just his familial relationship with his uncle) and the applicant’s telling the Taliban of the applicant’s political opinion (not just his familial relationship to his uncle).
[62] Transcript of Proceedings, 19 April 2016 at p.22.
As with the first so-called integer, the applicant’s assertions concerning the existence of an integer of claim were extremely subtle. The Minister submitted that no claim on such terms was made at all. In my view, there is real force in the Minister’s submission. In debate with
Mr Albert I raised the possibility that an administrative body in the form of the IPAR receives what I termed an “avalanche of information, some of which might be hyperbole, some might be well founded”.[63] When asked whether it would be open to the relevant administrative body to reject the information as being unfounded, Mr Albert agreed. When I posed the scenario of the administrative body responding to the avalanche of information by stating that no integer of claim arose, that it was discursive nonsense to be rejected, Mr Albert also agreed.
He qualified his agreement where twice given by adding that those events did not occur on the facts of this case.
[63] Transcript of Proceedings, 19 April 2016 at p.10.
I do not agree. That was precisely what happened here.
The applicant encountered trouble encapsulating the real essence of the second so-called integer beyond stating that the IPAR viewed the factual scenario “through the prism of ethnicity”.[64] The way Mr Albert articulated the second integer during the hearing of the review was very different to the way the case was presented to the IPAR, even accepting that the written submissions on behalf the applicant dated
25 November 2011 were detailed, extensive and addressed propositions of fact and law.
[64] Transcript of Proceedings, 19 April 2016 at p.22.
In reaching the conclusion that the so-called second integer was not made out, it is not necessary to pass upon a hotly debated point between the applicant and the Minister in relation to the IPAR’s finding that the applicant’s uncle was an “ordinary Hazara landowner” as appeared in paragraph 74 of the IPAR’s reasons. Whether the applicant’s uncle was such an ordinary landowner, whether he was a Taliban informant, whether the applicant’s political views aligned with those of his uncle or whether the IPAR erred in examining this issue with a focus on Hazara ethnicity largely missed the point. The point relevant to my task in undertaking this judicial review of the IPAR’s determination was the ascertainment of whether the so-called second integer was ever raised and if it was, whether the IPAR determined it. In my judgment, the so-called second integer was not raised.
It followed that the IPAR made no error.
Consideration of the third integer
As to the third integer, I am likewise of the view that the claim as articulated by Mr Albert was not made to the IPAR in those terms.
It will be recalled that Mr Albert submitted that the applicant’s
well-founded fear of persecution arose from –
a)the applicant being Hazara and Shi’a;
b)his imputed political opinion as Hazaras as a group considered to be opposed to the Taliban; and
c)the Taliban’s threat being exacerbated by the applicant’s fear that his uncle would report him if he were to return to Afghanistan because the applicant’s uncle had links to the Taliban.
Mr Brown said no such claim was made.
There is some merit in Mr Albert’s point to the effect that the finding that the uncle was an ordinary Hazara landowner did not address the point he made as recited immediately above. Mr Albert put it poignantly when he submitted –
If an ordinary Hazara landowner is one that engages other people to murder his relatives, well, then our guy is one of those.[65]
[65] Transcript of Proceedings, 19 April 2016 at p.30.
True, the fact that the uncle having been an ordinary Hazara landowner (even if true) did not address whether the uncle had links with the Taliban. But that concept is altogether different to the proposition advanced as the so-called third integer. Had the claim or the integer of the claim been articulated in the way Mr Albert encapsulated the integer then the IPAR would have been forced to decide the matter.
But that is precisely the point. No claim in those terms was in fact advanced, still less did it arise clearly from the material, whether the test is expressed as being that in Dranichnikov or NABE. Mr Albert skilfully formulated and advocated the so-called third integer.
The major setback he encountered was that no such claim was made in the material.
In my view none of the integers of claim arose from the material and the IPAR therefore made no jurisdictional error in determining the case in the way the IPAR did.
Third ground of review
The third ground of review addressed issues associated with relocation and whether the IPAR dealt with the matter.
The international relocation principle
The applicant and the Minister were in common cause that the current test in determining the international relocation principle was set out in the decision of the High Court in Minister for Immigration and Border Protection v SZSCA & Anor[66] (“SZSCA”) which in turn applied the observations of the High Court of Australia in SZATV v Minister for Immigration and Citizenship[67] (“SZATV”). In fact, the international relocation principle traces its origins to the decisions of the Full Court of the Federal Court of Australia in Randhawa v Minister for Immigration, Local Government and Ethnic Affairs.[68] It draws on the speech of Lord Bingham in Januzi v Secretary of State for the Home Department[69] (“Januzi”). In essence, a well-founded fear of persecution need not always extend to the whole of the territory of an applicant’s country of nationality in order for an applicant to qualify as a refugee. However, a person will be excluded from refugee status if, under all the circumstances, it would be reasonable to expect him or her to seek refuge in another part of the same country. What is reasonable for the purposes of the relocation principle will depend on the impact on the applicant from refugee status of relocation to the place of residence within the country of nationality.[70]
[66] [2014] HCA 45.
[67] (2007) 233 CLR 18.
[68] (1994) 52 FCR 437.
[69] [2006] 2 AC 426.
[70] See SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18.
In the later High Court decision in SZSCA, the observations in Januzi and in SZATV were applied. The decision in SZSCA involved an applicant who lived in predominantly Hazara occupied territory.
The High Court said the following of the international relocation principle –
The “internal relocation principle” is well established. According to this principle, a person is not a refugee within the meaning of the Convention if he could avail himself of the real protection of his country of nationality by relocating to another part of that country.[71]
[71] [2014] HCA 45 at [21].
In the United Kingdom, the modern jurisprudence commenced with the decision of the United Kingdom Court of Appeal in E v Secretary of State for the Home Department[72] (“E”), a decision approved by the House of Lords in Januzi. The relevant passage from E was this –
Relocation in a safe haven will not provide an alternative to seeking refuge outside the country of nationality if, albeit that there is no risk of persecution in the safe haven, other factors exist which make it unreasonable to expect the person fearing persecution to take refuge there ... Where the safe haven is not a viable or realistic alternative to the place where persecution is feared, one can properly say that a refugee who has fled to another country is ‘outside the country of his nationality by reason of a well-founded fear of persecution’.[73]
[72] [2004] QB 531.
[73] [2014] HCA 45 at [30].
In SZSCA, the plurality said the nature of the test involved -
… a comparison between the conditions prevailing in the place of habitual residence and those which prevail in the safe haven, having regard to the impact that they will have on a person with the characteristics of the asylum seeker.[74]
[74] Ibid.
In SZSCA, the High Court held that the Tribunal did not address the impact on the respondent in remaining in Kabul and not driving trucks on the roads that he usually frequented in the course of his business. The High Court said that was an error of law.
Reasonableness of relocation imports a question of practicability,
as Kenny J pointed out in SZQPY v Minister for Immigration and Border Protection[75] (“SZQPY”).
[75] [2013] FCA 1133 at [74].
In this case, the applicant submitted that error was disclosed in paragraphs 83, 84 and 85 of the IPAR’s reasons. Mr Albert submitted it was unreasonable for the applicant to relocate for two reasons, namely because of –
a)insecurity, political instability, economic and social problems; and
b)increased pressures being put on labour markets and resources and widespread unemployment limiting the ability of a large number of people to meet their basic needs.
Mr Albert submitted that the IPAR accepted each proposition set out in the two subparagraphs immediately above, yet the IPAR did not accept that in Kabul, there was a risk that the applicant would suffer any of the significant harm listed in s.36(2A) of the Act.
Mr Albert submitted that the important issue was not addressed.
He contended that the IPAR failed to consider issues that went to the question of whether relocation was unreasonable. He submitted that issues were specifically raised about high levels of unemployment, limited health infrastructure and inadequate housing. In respect of the applicant’s own personal circumstances, Mr Albert submitted that the IPAR should have but failed to address those in the context of the reasonableness of relocation. He said those personal circumstances included –
a)that the applicant was uneducated;
b)the applicant had received a couple of years-worth of religious education at a local mosque;
c)the applicant had no qualifications or skills;
d)he had been a farmer from most of his life; and
e)for a time the applicant worked as a factory worker in Iran, a skill not transferable to Kabul.
Mr Albert submitted that the sum total of the IPAR’s consideration of the subject of relocation was in paragraph 85 of the IPAR’s reasons. There, the IPAR found that in Kabul, the applicant had familial support as well as an ethnic Hazara community network at his disposal.
The IPAR found that the applicant’s past experiences of being able to adapt to unfamiliar and differing social contexts, as evidenced by his international travel since leaving Iran, enabled him to re-establish his and his family’s residence there. The IPAR found that it was reasonable for the applicant to relocate to Kabul.
On the Minister’s behalf, Mr Brown submitted that the IPAR addressed the specific objections that RACS raised in its 10 August 2012 submissions. The Minister submitted that in addressing the objections raised by RACS, the IPAR in fact dealt with the very points about which the applicant complained in this proceeding. The Minister submitted that in the context of the IPAR considering harm,
of necessity the IPAR considered the reasonableness of relocation to Kabul.
In reply submissions, Mr Albert contended that the applicant did not quibble with the IPAR’s findings that the risk of violence making relocation unreasonable did not rise to a level of being a real risk of significant harm. He submitted that the applicant’s grievance lay in the IPAR’s assessment of reasonableness where the IPAR did not deal with the question of harm or violence not rising to the level of real risk of significant harm but which nevertheless affected reasonableness.
The reasonableness of relocation must be determined in the context of the practicability of the relocation. The High Court so held in SZATV as did Kenny J in SZQPY. In the context of this case, the issue is whether the IPAR addressed that proposition. While the IPAR did not specifically refer to those authorities (yet curiously the IPAR did refer to Khawar) it seems to me that the IPAR did in fact address the practicability of relocation to Kabul. In my view, the reply submissions in relation to ground three were an ambitious expression of the obligations upon the IPAR. In my view, the IPAR made no jurisdictional error in relation to ground three.
Conclusion
Despite some intriguing arguments advanced on behalf of the applicant, in my judgment none were successful and I am not persuaded that the IPAR made any jurisdictional error in the facts of this case.
I dismiss this application for review and I order the applicant to pay the Minister’s costs.
I certify that the preceding eighty-nine (89) paragraphs are a true copy of the reasons for judgment of Judge Wilson
Date: 6 October 2016
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