MZYLR v Minister for Immigration

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MZYLR v MINISTER FOR IMMIGRATION & ANOR

[2011] FMCA 633

MIGRATION – Independent Merits Reviewer – whether IMR failed to consider a claim – whether unwillingness to afford state protection was a separate claim.

Minister for Immigration and Citizenship v SZONJ (2011) 278 ALR 608; [2011] FCAFC 85
Minister for Immigration and Multicultural Affairs v Khawar (2002) 210 CLR 1; (2002) 76 ALJR 667; (2002) 187 ALR 574; [2002] HCA 14
Plaintiff M61/2010E v The Commonwealth and Others (2010) 85 ALJR 133; (2010) 272 ALR 14; [2010] HCA 41

Applicant:

MZYLR

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

LUKE HARDY IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER

File number:

MLG 473 of 2011

Judgment of:

Riley FM

Hearing date:

16 August 2011

Date of last submission:

16 August 2011

Delivered at:

Melbourne

Delivered on:

14 September 2011

REPRESENTATION

Counsel for the Applicant:

Ms Szydzik

Solicitors for the Applicant:

Victoria Legal Aid

Counsel for the First Respondent:

Mr Horan

Solicitors for the First Respondent:

Australian Government Solicitor

Counsel for the Second Respondent:

No appearance

Solicitors for the Second Respondent:

Australian Government Solicitor

DECLARATION

In recommending to the first respondent that the applicant was not a person to whom Australia has protection obligations, the second respondent failed to observe the requirements of procedural fairness.

ORDERS

The first respondent pay the applicant’s costs fixed in the sum of $6,240.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT MELBOURNE

MLG 473 of 2011

MZYLR

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

LUKE HARDY IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER

Second Respondent

REASONS FOR JUDGMENT

Background

This is an application for declaratory and injunctive relief in relation to a recommendation made by an independent merits reviewer (IMR) that the applicant not be recognised as a person to whom Australia has protection obligations under the Refugees Convention.
The applicant is an Afghan of Hazara ethnicity and Shiite religion. He arrived at Christmas Island on 23 February 2010. He requested a refugee status assessment. On 18 June 2010, an assessor found that the applicant was not a person to whom Australia owed protection obligations. On 17 July 2010, the applicant sought an independent merits review. That review was determined adversely to the applicant on 25 February 2011. The applicant filed an application in this court on 6 April 2011, and filed an amended application on 3 August 2011.

Claims

The applicant said that he had worked as a motor mechanic in his home area of Jaghori since 2003. He said that he had been engaged by a Non Government Organisation (“NGO”) in Qarabagh to repair mechanical shovels on two occasions. A month later, he was asked by the same NGO to repair another shovel. He took it back to his workshop to carry out the repairs. The man who had asked the applicant to do the work told him that the Taliban had found out that the applicant had done work for an NGO. The man told the applicant that the Taliban had said that they would harm the applicant if he did any further work for the NGO and that the Taliban had said that if they found the applicant, they would kill him. The applicant said that, as a result, he stopped working for the NGO.
The applicant said that he subsequently went to Ghazni to buy a machine for his business. When the machine was being delivered, the truck carrying it was stopped by the Taliban and they burnt the machine. Later, the applicant said that he received threats from the Taliban. The applicant said that the Taliban searched every car that left Ghazni, looking for him. The applicant said that the Taliban wanted to kill him. He said that he decided to leave Afghanistan.
The applicant claimed to fear persecution on the grounds of his Hazara ethnicity, his Shiite religion and his imputed political opinion. He also said that the Karzai government was unable to protect him, and that:
Hazara Shia’s (sic) are a targeted and vulnerable minority group without access to police protection.

The decision of the IMR

The IMR accepted that the applicant was a national of Afghanistan, a Hazara, a Shiite and a motor mechanic who lived in Jaghori. The IMR also accepted that the applicant did work for infrastructure companies that did repairs and upgrades in Ghazni. The IMR accepted that the applicant had done work for an NGO. The IMR accepted that the applicant had bought machinery which was intercepted on the way to Jaghori. The Tribunal did not accept that that the machinery was burned, but considered that it had been stolen. The Tribunal did not accept that the robbery was undertaken by the Taliban, or that the Taliban was stopping cars and searching for the applicant.
The IMR accepted the applicant’s concession, which was consistent with country information, that simply being a Hazara and a Shiite would not give rise to a real chance of persecution by the Taliban. The IMR considered that there was a risk of robbery and violence on the roads into Jaghori, but the applicant had a demonstrated ability to manage such journeys.
The IMR concluded that the applicant was not a person who faced a real chance of persecution for any Convention reason.

Ground 1(a): denial of procedural fairness

The first aspect of the first ground of review in the amended application filed on 3 August 2011 is:
The IMR failed to observe the common law rules of procedural fairness.
Particulars
a.The IMR failed to address one of the claimed bases for the plaintiff’s fear of persecution, being that the state of Afghanistan is unwilling or unable to protect the applicant from harm, and the state’s failure to protect is for a Convention reason.
It is clear from the High Court’s decision in Plaintiff M61/2010E v The Commonwealth and Others (2010) 85 ALJR 133; (2010) 272 ALR 14; [2010] HCA 41 at [90] that a failure by the IMR to “address one of the claimed bases for the [applicant’s] fear of persecution” will constitute a denial of procedural fairness. In the present case, the applicant said that the IMR failed to address the claim that the applicant would be denied state protection for a Convention reason.
The first respondent argued that the denial of state protection was not a separate claim in this case. The first respondent argued that the applicant had three claims, which were based on race, religion and imputed political opinion.
It is true that denial of state protection is not, of itself, a basis for fear of persecution under the Refugees Convention. Usually, the question of state protection arises where it is found that there is persecution by a non-state actor for a Convention reason. In such cases, a fear of persecution may not be well-founded if state protection is reasonably available.
However, a failure of state protection can be significant in the assessment of refugee claims on two grounds. The first ground arises where a person faces persecution for a Convention reason and the state is unwilling or unable to protect the person for any reason. The second ground arises where a person faces persecution for any reason, and the State, for a Convention reason, withholds protection.
In relation to the first ground, the IMR in the present case found that the applicant did not face a real chance of persecution for reason of his Hazara race, Shiite religion, allegedly anti-Taliban imputed political opinion or any other Convention reason. The applicant did not challenge those findings.
However, in relation to the second ground, the applicant argued that the IMR’s own findings indicated that the applicant faced a real risk of highway robbery, and the applicant expressly claimed that the state would withhold its protection for Convention reasons, namely, his Hazara ethnicity and Shiite religion. The first respondent argued that no such claim was expressly raised and no such claim arose on the materials.
The applicant noted that it is well established that a person who is persecuted by non-state agents will fall within the definition of a refugee if there is a Convention nexus consisting of either the motivation of the non-state actor or the motivation of the state: Minister for Immigration and Multicultural Affairs v Khawar (2002) 210 CLR 1 at [31] per Gleeson CJ.
The applicant also said that the IMR had accepted that:
a)highway robbery was “not uncommon” in Afghanistan (CB232);
b)there was a “risk of robbery with violence on the road into Jaghori” (CB232); and
c)the applicant himself had been robbed (CB232).
It is not entirely accurate to say that the IMR accepted that the applicant himself had been robbed. In fact, the IMR accepted that the applicant’s machine was stolen from the person who was transporting it on behalf of the applicant. The IMR noted that the applicant himself had frequently travelled the roads around Jaghori without being robbed.
However, those findings leave open the possibility that the applicant faced a risk of highway robbery, because highway robbery was “not uncommon”, and the state would not protect him for a Convention reason. The question is whether the applicant expressly made that claim, or whether it arose sufficiently on the materials.
The applicant said that he had raised the issue of the failure of state protection in his adviser’s submission to the IMR. That submission says, at CB115:
The claims put forward by the Applicant are contained in his Statutory Declarations in support of his Applications for Refugee Status Assessment and as set out in the body of this Submission. The Applicant indicates that his fear of persecution is based on his ethnicity, being Afghan Hazara, his religion, being Shia Muslim and his imputed political opinion, given his work with the NGO’s.
There is no mention in that paragraph of withholding state protection for a Convention reason. In his statutory declaration, the applicant said that he had been targeted by the Taliban because he had worked for an NGO. The statutory declaration went on to say (at CB47):
Why I believe that the authorities in my country will not protect me if I go back: The Afghan government cannot protect itself so it has no way to protect me.
The applicant’s statutory declaration did not claim that the Afghan state would withhold protection from him for a Convention reason. Rather, the statutory declaration simply said that the Afghan government cannot protect anyone, even itself. That does not satisfy the test. For example, in Minister for Immigration and Citizenship v SZONJ (2011) 278 ALR 608; [2011] FCAFC 85, the Full Federal Court said at [33] that:
Thus, where there is persecution by a non-state agent for a reason that has no convention nexus, and that conduct is condoned or tolerated by the state for a convention reason, the victim may be a refugee within the meaning of the convention. However, where there is persecution by a non-state agent for a reason that has no convention nexus and that conduct is not prevented by the state by reason only of the inability of the state to prevent it, such that there is no convention reason that motivates the state or prevents the state from intervening, the test will not be satisfied. To the extent that AZAAR’s case suggests otherwise, it was not correctly decided.
In other words, even if it is true that the Afghan state is unable to protect anyone, as the applicant appears to claim, that would not be sufficient to enable the applicant to meet the test of being a refugee.
However, the applicant’s submission to the IMR at CB 116 to 117 said the following:
Persecution arising from Ethnicity
The Applicant claims protection on the basis of his ethnicity ….
Persecution arising from Religion
The Applicant also claims protection on the basis of his religion ….
Persecution arising from Imputed Political Opinion
The Applicant claims protection on the basis of his imputed political opinion ….
Failure of Afghanistan to Avail Protection
The Applicant is not able to seek protection from the authorities, as they do (sic) not believe that the authorities can protect him. Hazara Shia’s (sic) are a targeted and vulnerable minority group without access to police protection. (emphasis added)
The Karzai Government and allied forces are unable to secure any areas in Afghanistan and cannot protect themselves. The Taliban are widespread throughout Afghanistan. They have regained their stronghold and continue to dominate the country.
We submit that the excerpts of country information below support the Applicant’s claims.
The applicant said that his submission to the IMR was supported by country information. The information that the applicant said is relevant to the issue of state protection is as follows:
a)An article by Professor Maley, “On the position of the Hazara Minority in Afghanistan”, paragraph 6 of which noted (at CB73) that:
i)Hazaras had been subject to discrimination and persecution for over 100 years;
ii)“on 6 January 2004, there was a grisly massacre of Hazara travellers near the border between Uruzgan and Helmund”;
iii)attacks of that type undermine the legitimacy of the state “by illustrating its inability to offer basic protections to ordinary citizens”; and
iv)“the limited capacity of the Afghan state means that ‘constitutional and legal reform to protect minorities’ rights’ are meaningless for most Afghans”.
b)A Human Rights Watch report for 2010 concerning corruption in Afghanistan, the absence of due process of law, kidnappings for ransom and violence by warlords (at CB131).
c)A UNHCR report from July 2009 which stated (at CB141) that:
the rising power of warlords is also a concern for Hazaras as they may pose a direct threat to the Hazara community given the absence of State presence and the rule of law in many areas.
d)A US State Department report dated 11 March 2010 which stated (at CB143) that:
Social discrimination against Shia Hazaras continued along class, race and religious lines. Ethnic Hazaras reported occasionally being asked to pay additional bribes at border crossings where Pashtuns were allowed to pass freely.
…
… ethnic tensions between [Hazaras and Kuchis] were reported in Ghazni province, fuelled by conflicts over grazing rights… .
e)A US State Department report dated 11 March 2010 which stated (at CB144) that:
Claims of social discrimination against Hazaras and other Shias continued.
f)An article by M. Amin Wahadi and Robert Maier in the Kabul Press on 25 May 2010 which stated (at CB150) that:
The Taliban always considered the Hazaras to be one of their main enemies. Under Taliban rule, the Hazaras faced genocide for the second time in modern history. … The Hazaras have always opposed the return of the Taliban to Afghanistan’s political arena, but since the Karzai administration needs the Taliban’s ethnic support, the return of the Taliban is continually supported by the government. The vigorous opposition of the Hazaras to this policy explains the administration’s on-going anti-Hazara discrimination.
g)A United States Commission on International Religious Freedom report dated 29 April 2010 which said (at CB156) that it was monitoring:
… the state’s failure to punish private, religiously motivated violence in Afghanistan… .
The first respondent conceded that “there are undoubtedly areas in Afghanistan which are quite dangerous and lawless”[1]. The first respondent also conceded that the IMR found that, outside Jaghori, there was a risk of robbery with violence[2]. However, the first respondent argued that the risk applied equally to everyone, and the state’s failure to prevent such harm applied equally to everyone. The first respondent then argued that the only way that Convention based persecution could arise would be if the applicant faced a discriminatory failure by the state to enforce the law and provide remedies in respect of the possible violence and robbery.
[1] Transcript, page 30 line 18
[2] Transcript, page 29 line 1
That much may be accepted. However, the first respondent then argued that this was not a case in which:
a)the applicant had been subjected to robbery and violence;
b)the applicant had asked for the law to be enforced; and
c)the state had refused to enforce the law for reasons of the applicant’s race or religion.
That is beside the point. It is axiomatic that a person does not need to have experienced a particular form of persecution in the past to face a real chance of experiencing it in the future.
In any event, the question at this point is whether the claim was sufficiently raised. The applicant said in his submission to the IMR:
Failure of Afghanistan to Avail Protection
… Hazara Shia’s (sic) are a targeted and vulnerable minority group without access to police protection. …
That was clearly a claim that the police failed to protect in the sense of maintaining a presence that discouraged or prevented crime. However, in context, it was also a claim that the police failed to protect by enforcing the law where Hazara Shias were the victims of crime.
The case put forward by the applicant was that he needed protection from the State for certain reasons. The IMR rejected those reasons. However, the IMR, in doing so, made a finding that the roads around the town in which the applicant lived were prone to violence and robbery. Violence and robbery are quintessentially the types of event that call for the enforcement of the law.
That is, the IMR’s own findings provided a factual substratum for the applicant’s claim that he would not be afforded state protection. Therefore, the applicant’s claim that he would be denied state protection was not devoid of content, as the first respondent contended.
Consequently, it was necessary, as a matter of procedural fairness, for the IMR to consider whether there was a real chance that the applicant would face persecution in the form of a selective refusal to enforce the law, in the event that the applicant suffered serious harm in the form of violence and robbery.
It is no answer to say that the IMR found that the applicant had made several trips around his home town without suffering robbery and violence. That did not amount to a finding that the applicant was somehow immune from robbery and violence, with the result that there could never be a need for him to seek the enforcement of the law.
On the contrary, the Tribunal merely said that those trips were “evidence” that the applicant “can leave and re-enter [his town] without facing a real chance of Convention-related persecution”, meaning violence and robbery for a Convention reason. The finding mentioned in paragraph 34 of these reasons did not address the question of whether the law would or would not be enforced for Convention reasons in the event that the applicant experienced random violence and robbery.
The first respondent also argued that there was nothing in the material that supported a selective withholding of protection. That may be so. However, that argument goes to the merits of the claim.
The claim that the applicant would be denied state protection was adequately raised in the applicant’s submission to the IMR and there was a factual substratum for the claim in the IMR’s finding that violence and robbery were not uncommon around Jaghori. Consequently, the claim had to be addressed. It was not addressed.
For these reasons, ground 1(a) is made out.

Ground 1(b): denial of procedural fairness

The second aspect of the first ground of review in the amended application filed on 3 August 2011 is:
The IMR failed to observe the common law rules of procedural fairness.
Particulars
b.In the event that it is found that the IMR did consider the issue of state protection contrary to what is put in particular a) to ground 1 (which is denied), the IMR failed to raise the issue of state protection with the applicant in any way.

The first respondent did not contend that the IMR raised the issue of state protection with the applicant. For the reasons already given, state protection was a live issue before the IMR. It was therefore necessary for the IMR to raise the point with the applicant, or decide it in his favour. The IMR did not do so. Consequently, ground 1(b) is also made out.

Ground 2: failure to consider a claim

The second ground of review in the amended application filed on 3 August 2011 is:
The IMR acted without or in excess of jurisdiction in that it failed to deal with an integer of the applicant’s case.
Particulars
b.The IMR failed to consider whether the state of Afghanistan is unable or unwilling to protect the applicant from harm by non-state actors:
i.The applicant’s submissions made in support of the application to the IMR set out the claim in relation to state protection at page 3.
ii.There was evidence before the IMR, which he accepted, that the applicant was at risk of harm by non state actors in Afghanistan.
iii. The IMR should have considered whether the applicant may be a refugee because the state of Afghanistan is unable or unwilling to protect him from harm by non-state actors, and the state’s failure to protect is for a Convention reason.
For the reasons already explained, ground 2 is also made out. There was some discussion about whether a failure to consider a claim, if the failure did not amount to a denial of procedural fairness, would be a proper foundation for relief. However, based on M61, a failure to consider a claim is clearly a denial of procedural fairness, and a proper foundation for relief.

Conclusion

In the circumstances, there should be a declaration that the IMR failed to observe the requirements of procedural fairness, and the first respondent should pay the applicant’s costs.

I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of Riley FM

Date: 14 September 2011

[2011] FMCA 633

14 September 2011

Key Legal Topics

Areas of Law

Immigration & Refugee Law

Legal Concepts

Jurisdiction

Costs