MZYLY v Minister for Immigration
[2011] FMCA 781
•14 October 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZYLY v MINISTER FOR IMMIGRATION & ANOR | [2011] FMCA 781 |
| MIGRATION – Alleged jurisdictional error by Independent Merits Reviewer – challenge to evidentiary findings as being made without evidence or on misunderstanding of evidence – alleged denial of natural justice – alleged application of wrong test – challenges unsustainable – application dismissed. |
| Migration Act 1958 (Cth) |
| Minister for Immigration and Citizenship v SZNPG (2010) 115 ALD 303 |
| Applicant: | MZYLY |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | LUKE HARDY IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER |
| File Number: | MLG 544 of 2011 |
| Judgment of: | Burchardt FM |
| Hearing date: | 31 August 2011 |
| Date of Last Submission: | 31 August 2011 |
| Delivered at: | Melbourne |
| Delivered on: | 14 October 2011 |
REPRESENTATION
| Counsel for the Applicant: | Ms N. Karapanagiotidis |
| Solicitors for the Applicant: | Victoria Legal Aid |
| Counsel for the First Respondent: | Mr R. Knowles |
| Solicitors for the First Respondent: | Australian Government Solicitor |
ORDERS THAT:
Time be extended to enable the applicant to make his application.
The application be dismissed.
The applicant pay the first respondent’s costs fixed in the sum of $6,240.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 544 of 2011
| MZYLY |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| LUKE HARDY IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant seeks judicial review of a decision of an Independent Merits Review (“IMR”) conducted by Mr Luke Hardy
(“the Reviewer”), the second respondent. The date of the decision was 4 March 2011.
The applicant’s amended application filed on 1 August 2011 sets out three grounds of application. The first is that the Reviewer asked the wrong question and/or applied the wrong test in assessing whether the applicant faced a real chance of persecution. The second was whether the Reviewer exceeded his jurisdiction and/or constructively failed to exercise jurisdiction by making findings for which there was no evidence or probative material and/or misconstrued or failed to consider the applicant’s claims. The third ground of review was failure to provide the applicant procedural fairness.
For the reasons that follow, I do not think that any of these grounds can be sustained and it follows that the application must be dismissed.
I should mention, purely in passing, that the first respondent did not oppose an extension of time sought by the applicant, and I will therefore make an order to that effect.
The Appropriate Test
Both parties proceeded on the footing (as set out in some detail in the first respondent’s contentions of fact and law) that the approach the Court should bring to the determination of the issues was that applying to applications for judicial review from decisions of the Refugee Review Tribunal. This is subject to the important caveat that the statutory pathway is self-evidently different, including the important caveat that what might be described as the statutory scheme in relation to procedural fairness does not obtain. Issues of procedural fairness are therefore to be addressed in what might be described as the common law way.
The Relevant Facts
While a number of matters concerning facts are the subject of considerable dispute, much of the background is not. The following facts are uncontroversial and are taken from the parties’ written submissions and the Court Book (“CB”).
The applicant is Hazara and a citizen of Afghanistan. He arrived on Christmas Island on 23 February 2010 as an unauthorised boat arrival. On 18 March 2010, the applicant participated in an entry interview on Christmas Island. On 28 April 2010, he participated in a Refugee Status Assessment (“RSA”) interview.
On 18 June 2010, the RSA officer found that the applicant did not meet the definition of a refugee as set out in the Convention. The RSA record is set out at CB 77 to 97.
On 3 November 2010, the applicant participated in an interview with the Reviewer and this led to the decision of 4 March 2011, the subject of this decision.
The first respondent’s written submissions, paragraphs 22 to 24, characterise the applicant’s claims of fear of harm globally as:
a)a fear of harm at the hands of the Taliban and Pashtuns because he is a Hazara Shi’a Muslim;
b)a fear of harm at the hands of the Taliban because he had conducted work for an NGO of which the Taliban disapproved;
c)a fear of harm in Afghanistan at the hands of the Taliban and Pashtuns because he was a returnee from a western country.
Those characterisations are, in my view, correct. The matter is put in more detail in the applicant’s written submissions at paragraph 9 (paraphrased below):
a)the applicant claimed to be a Hazara, Shi’a Muslim married with three children. His parents are deceased and he is also responsible for his siblings, all of whom are under the age of 18;
b)the applicant lived in Tawkat Dowlatshah in the Jaghori district, which was about 45 minutes by road from Sange Masha where he worked; those places are about three hours by road from Ghazni City;
c)from about the age of 18 until he came to Australia, the applicant ran his own carpentry business;
d)for about a year, on and off, the applicant worked with two engineers who were involved in constructing schools for the NGO Shuhada Organisation which undertook education activities and established shelters for vulnerable women in Afghanistan;
e)at times the applicant was unable to access ceiling timber inside Jaghori and so had to go to other towns to have it delivered;
f)the applicant was detained by the Taliban for three days because of his work with the Shuhada school project. He managed to escape on the third night of his detention;
g)upon his escape the applicant returned to his village for four or five months but did not go back to work in Sange Masha. The Taliban did not come after him during this time as the Taliban could not possibly enter his village.
It is important to look relatively closely at what the applicant proffered by way of material in order to understand the grounds of review. In his entry interview the applicant records at CB 11 and 20 his reasons for leaving his country of nationality. The first reason he proffers is clearly the generalised assertion of prejudice from the Taliban and the Pashtuns on the basis of his being a Shi’a infidel. The second reason is the incident where he was captured by the Taliban and held captive for three days after which he escaped through what is described as a manhole (skylight). That passage occupies the majority of the reasons. In the statutory declaration forwarded by his lawyers at CB 56 to 57 the applicant again laid particular emphasis (understandably in the circumstances) on the occasion of his abduction and capture by the Taliban. He also confirmed “I managed to get back to Sange Masha but I never worked after that as I was too scared to go to my shop.”
A similar assertion was made in his entry interview.
The RSA interview is not, as it were, before the Court but from the RSA decision at CB 90 to 91, one can ascertain what it was that the applicant told the RSA interviewer. The relevant part of the reasons for these purposes is at CB 90 as follows:
“Firstly, at his RSA interview he claimed that the two engineers would bring timber to him to work on that was intended for the school ceiling. He had enough of his own timber to work on the windows and doors for the schools. When he had finished working on the wood, the engineers would take the finished product from his factory to various schools in the district. He said that the NGO wanted him to install the timber at the schools but he was too afraid to transport it to the schools so other carpenters may have organised the transportation of the finished timber. He worked with the engineers for about one year but not continuously as he already had enough of his own work. … By his own admission he worked sporadically with the engineers. …”
The assessor went on to deal with the incident where the applicant was abducted by the Taliban on the way to Ghazni but the Reviewer concluded at CB 91:
“After interviewing the claimant I am not satisfied that the claimant was captured by the Taliban, badly beaten and held for three days in a room in the mountains or that he escaped from its custody. Furthermore it is open to him to work on less controversial jobs that would not attract the attention of anti-government elements. As the client himself said, he worked irregularly on the school project for only one year and he already had enough of his own work.
Furthermore the claimant returned to his village for about four or five months after his claimed escape, claiming that he was too afraid to return to his factory. …”
It should be noted in passing that the RSA decision refers in terms to a report from the Finnish Immigration Service as to the current situation in the Jaghori District of Ghazni and various other country information about the position of Hazaras more generally.
In the written submissions filed by the applicant’s lawyers, under cover of a letter dated 12 August 2010, at CB 114 the claim was articulated expressly on the basis of “his imputed political opinion, namely his work with the NGO’s”. The applicant again lays stress upon the abduction and three days’ imprisonment by the Taliban.
The letter forwarded to the Reviewer following the Independent Review Hearing on 3 November 2010 (CB 165 to 167) once again lays emphasis upon the NGO component of the applicant’s fears of persecution and also repeats the fears of persecution in a more generalised sense as a Hazara.
It should be noted that the Reviewer did not accept, like the RSA interviewer, the applicant’s account of his abduction by the Taliban and the escape. The Reviewer disbelieved the applicant.
This introductory section now completed, I turn to the particular allegations advanced by the amended application.
Ground 1: The IMR asked itself the wrong question and/or applied the wrong test in assessing whether the applicant faced a real chance of persecution
This ground has three particulars which I will deal with separately:
a)The Reviewer found the applicant could continue to live safely within Jaghori without having to leave the district;
b)the Reviewer imposed a condition upon the applicant’s return; that is, if he remained within the confines of his village he would be safe from persecution; and
c)the notion that it was reasonable for the applicant to take action to avoid persecutory harm led the Reviewer into a failure to consider properly whether there was a real chance of persecution if the applicant was returned to Afghanistan.
The applicant makes criticism of the Reviewer’s finding that “he could continue to live safely within Jaghori without having to leave the district. He said this was how he preferred to do business in the past”. As the applicant submits, this finding is inconsistent with his evidence to the Reviewer. It is clear from the transcript that the applicant said that he would have to travel outside the Jaghori District, to either Ghazni and/or Kabul, from time to time to get supplies, whether for NGO work or otherwise.
Nonetheless, the Reviewer also found, as a fact, that the applicant would not face a risk of harm in so travelling, and that finding was in my view well-open to the Reviewer on the materials. Accordingly, even if the first finding is incorrect, the overall conclusion is not.
It should be noted that in Minister for Immigration and Citizenship v SZNPG (2010) 115 ALD 303, the Full Federal Court constituted by North and Lander JJ said at [28]:
“However, an error of fact based on a misunderstanding of evidence or even overlooking an item of evidence in considering an applicant’s claims is not jurisdictional error, so long as the error, whichever it be, does not mean that the RRT has not considered the applicant’s claim.”
It is clear that the applicant’s claim was considered.
The applicant’s submission that the Reviewer imposed a condition upon his return that he remain in the confines of his village is once again, in my view, misconceived. If one reads the decision of the Reviewer as a whole, it is clear that the Reviewer was seized of the proposition that the applicant would or might leave his home area from time-to-time. The Reviewer went into some detail about this aspect of the matter. At CB 185 the Reviewer said:
“I find on (applicant’s name) evidence that it is not uncommon for him to travel to Ghazni and Kabul in relation to his work. I accept he has travelled the direct road between Jaghori and Ghazni. I accept that he has sometimes seen to the purchasing and dispatch of material for his carpentry work both from Kabul and Ghazni.
…
On the evidence before me, I do not accept that a trip outside of Jaghori to procure timber would help to identify Mr (applicant) as a person working with NGOs. He described many road stops during procurement trips in recent years where he was not at all suspected of assisting the government or NGOs.”
At CB 188 the Reviewer considered:
“Mr (applicant) and independent country information agree on the point that there is a risk of robbery with violence to anyone travelling on the road between Ghazni city and Jaghori District. On the other hand, as discussed, Mr (applicant) has evidently managed numerous journeys on these roads a number of times in recent years in spite of the unabated risks of criminality on the road. There is nothing before me to suggest that any self-protective measures he might have taken in planning and undertaking these trips have been or would continue to be unreasonably burdensome.”
In the circumstances, I accept the submission of the Minister that, taken fairly as a whole, the decision of the Reviewer does not indicate that the Reviewer had failed to apply the correct test because he imposed a condition on the applicant that he live only at his home and never leave it. The Reviewer made no such finding.
Likewise, I do not think that the Reviewer was seized of a notion that it was reasonable for the applicant to take action to avoid persecutory harm in the sense complained of by the applicant in written submissions. All the Reviewer did was to address the controversies before him. The passage I have cited about the applicant taking precautions on travel is no more than an observation on the evidence that the applicant himself put before the Reviewer.
I repeat, when read fairly and as a whole, the Reviewer’s reasons show that he applied the correct test.
Ground 2: The Reviewer exceeded his jurisdiction and/or constructively failed to exercise jurisdiction in that he made findings for which there was no evidence or probative material and/or misconstrued or failed to consider the applicant’s claims
Here I refer again to the passage earlier cited from the judgment of North and Lander JJ. In one sense that is determinative of this ground on its own. The matters particularised are in substance really impermissible merits review.
So far as the particular findings set out in the amended application are concerned, the matter was articulated in written submissions slightly differently.
The first matter raised was the risk of Taliban invasion in Jaghori. The Reviewer found that the Taliban were not able to enter Jaghori and that the applicant’s village was “Taliban proof”. In the ultimate, I think the Reviewer was entitled to rely upon what was contained in the Finnish Report to which I have earlier referred and the absence of any evidence from the applicant. While much is made in the applicant’s written submissions and indeed in oral submissions as to the historical nature of the Finnish Report the fact is that, as the first respondent correctly submits, the applicant has been in touch with his family in Afghanistan and would have been in a position to bring to the Reviewer’s attention any incursion by the Taliban into the Jaghori District. The Reviewer’s finding that the applicant was safe in Jaghori was plainly open to him on the materials.
The next aspect of evidentiary finding challenged was the nature of the applicant’s relationship with the Shuhada NGO. The Reviewer gave weight to the intermittency of the work and the large size of the NGO. The finding about the large size of the NGO was plainly open to the Reviewer on the materials. So far as intermittency of the work was concerned, the following exchange took place at p-22 at line 12:
“Mr Hardy: You said you worked there regularly on the school project, and that you had plenty of other work to do.
Applicant: Yes, it was a factory. Whatever job we used to get, we done it. But since (indistinct) from the beginning, because I got the contract for three schools, so I was doing a lot of work for him.”
That passage is also consistent with the RSA interview recorded by the Reviewer at CB 174 that the applicant “worked with Sayed and Akram for about a year on and off, having plenty of other work to keep him busy”.
In these circumstances, it is clear that the Reviewer’s findings that the work was intermittent was open to him on the materials.
The Reviewer found that the applicant was on the road between Jaghori and Kabul a number of times over the four to five months before he left Afghanistan. While it is true that this finding may be open to some serious question given that while the applicant undoubtedly travelled to Kabul at least once in order to leave Afghanistan, there does not appear, as far as I can see, to be any direct evidence of multiple travel as the Reviewer asserted. I accept the submission of the first respondent at paragraph 79 of his written submissions that “in any event, given that the Reviewer found that any incident on the roads outside Jaghori district would not have a nexus with the Convention, it cannot be said that this finding was critical to the Reviewer’s recommendation”.
What was really critical to the Reviewer’s findings was the rejection of the applicant’s account of his abduction and beating at the hands of the Taliban followed by his escape. I have not referred to this matter in any great detail and do not propose to do so. It was well-open to the Reviewer on the materials before him not to accept this critical aspect of the applicant’s case (see CB 177 and 186). In the ultimate, the failure of the Reviewer to believe that aspect of the applicant’s case, this being according to him the central consideration why he actually left Afghanistan and came to Australia in fear of harm if he is returned, was really of itself sufficient to destroy the applicant’s credibility entirely. Once that critical decision was made, in many ways all other matters became of very little significance.
Ground 3: The Reviewer failed to accord the applicant procedural fairness by failing to provide the applicant with adverse country information and/or an opportunity to comment upon adverse country information
The country information referred to here is the Finnish Report and also the US Department of State 2009 Country Reports on Human Rights Practices Afghanistan.
This ground can be disposed of shortly. I accept the first respondent’s submissions. The Finnish Report was before the RSA interviewer and was referred to expressly in the RSA decision record. The applicant knew or ought reasonably to have known this was a matter in issue.
Likewise, while the US Department of State documents do not appear to have been adverted to specifically in the RSA decision record, numerous other country information documents about the conditions of Hazaras generally were proffered to the Reviewer by the applicant’s advisors. The Reviewer referred to the US Department of State report but only insofar as it, as well as other reports from Amnesty International and Human Rights Watch, did not mention any systematic persecution of Hazaras or Shi’a Muslims in Afghanistan. As I say, this was clearly an issue to which the applicant should have been alerted and the failure to bring this particular documentation to his attention does not, in the circumstances of the case, in my view, amount to a breach of natural justice.
Conclusion
For all of these reasons, the application must be dismissed and I will so order.
I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Burchardt FM
Date: 14 October 2011
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