MZYNA v Minister for Immigration
[2011] FMCA 911
•6 December 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZYNA v MINISTER FOR IMMIGRATION & ANOR | [2011] FMCA 911 |
| MIGRATION – Application for review of Independent Merits Reviewer – four grounds of alleged error – grounds not made out – application dismissed. |
| Migration Act 1958 (Cth) |
| Plaintiff M61/2010E v Commonwealth of Australia (2010) 272 ALR 14 Minister for Immigration and Multicultural and Indigenous Affairs v VOAO [2005)] FCAFC 50 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 Minister for Immigration and Citizenship v SZNPG & Anor [2010] FCAFC 51 |
| Applicant: | MZYNA |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | C. PACKER IN HIS CAPCITY AS INDEPENDENT MERITS REVIEWER |
| File Number: | MLG 731 of 2011 |
| Judgment of: | Burchardt FM |
| Hearing date: | 13 October 2011 |
| Date of Last Submission: | 13 October 2011 |
| Delivered at: | Melbourne |
| Delivered on: | 6 December 2011 |
REPRESENTATION
| Counsel for the Applicant: | Mr R. Knowles |
| Solicitors for the Applicant: | Victoria Legal Aid |
| Counsel for the Respondents: | Mr W. Mosley |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
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 731 of 2011
| MZYNA |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSIHP |
First Respondent
| C. PACKER IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant seeks relief in relation to a decision of the second respondent (“the Reviewer”) dated 21 April 2011 whereby the Reviewer found that the applicant was not a person to whom Australia owed Convention protection as a refugee. He sets out four grounds in respect of which it is asserted that the Reviewer fell into reviewable error such that he should be granted the relief he seeks.
For the reasons that follow, I do not think that the grounds of application are made out, and the application must be dismissed.
It should be noted that although the parties have dealt at some length in their written submissions with the statutory scheme with which the Court and this application are concerned, for present purposes it is sufficient to note that both parties agree that this Court should approach this matter in the manner indicated by the High Court in Plaintiff M61/2010E v Commonwealth of Australia (2010) 272 ALR 14 and in particular, the passage at [78] where the Court stated:
“Consideration of the exercise of the power must be procedurally fair to the persons in respect of whom that consideration is being given. And likewise, the consideration must proceed by reference to correct legal principles, correctly applied.”
The Facts
Most of the relevant background facts are completely uncontroversial and what follows is taken from the written submissions of the parties and the Court Book (“CB”).
The applicant was born in Afghanistan in 1988. He is Hazara and a Shi’a Muslim. He was born in the Zabul Province in Afghanistan where he lived until he was five years old and in 1993, his family moved to Pakistan due to problems with the Taliban and Pashtuns. They settled in Quetta.
The applicant worked in a variety of jobs in Quetta, including working with a now deceased brother in a shop from 2007 until 2009. The applicant’s father died three years ago and the applicant is now the oldest surviving male member of the family. His younger brother (see paragraph 17 of the Reviewer’s decision, CB184) “is now supporting the family in Quetta, from his earnings as a shoe repairer.”
The Reviewer accepted that the applicant’s uncle, being his only surviving male family member in Afghanistan after 1993, was killed in recent times and that the uncle’s family has left Afghanistan for Pakistan.
It is common cause that any land that the applicant’s family previously owned in Zabul Province has been lost and that he now has no family left in Afghanistan.
The applicant left Pakistan and travelled to Malaysia and then Indonesia. He boarded a boat in Indonesia which was intercepted by the Australian Navy and he was taken to Christmas Island in January 2010.
Following that arrival, he was assessed at a Refugee Status Assessment (“RSA”). He sought a merits review of the RSA record, and that gave rise to the decision presently under review.
Ground 1 – Failure to consider whether the applicant faced a real chance of persecution upon any return to Afghanistan in the reasonably foreseeable future (emphasis added).
The amended application filed on 5 August 2011 asserts that the Reviewer was obliged to consider the likely situation which would prevail into the reasonably foreseeable future in Afghanistan, and that the Reviewer failed to do so both as regards Afghanistan generally and in particular, Kabul. The applicant’s written submissions traverse the relevant arguments at paragraphs 5.4 to 5.10. The applicant submits that despite his former representatives advancing the submission that security in Afghanistan was precarious and could worsen in the future for Hazara Shi’a Muslims, the Reviewer failed to form any view about the likely situation in the reasonably foreseeable future in Afghanistan and, in particular, Kabul and how this might affect the applicant.
In oral submissions, counsel for the applicant pointed out that the proper consideration of any return to Kabul, which was described as the critical issue, involved considering two issues. The first was whether the applicant would face persecution, and the second was whether it was reasonable to relocate. It was put that the first step had simply been omitted. It was submitted that no consideration had been given to the deteriorating security situation in Kabul.
The first respondent’s submissions roundly disagreed with this proposition. It was submitted that when the decision was looked at as a whole, it was clear that the Reviewer had indeed considered this matter, both in the sense of the present and the reasonably foreseeable future.
At this stage, it is appropriate to say a few words about the structure and nature of the Reviewer’s decision.
The Reviewer set out the relevant law in terms that have not been the subject of adverse criticism. The Reviewer then set out the applicant’s claims in some detail and referred to the RSA of 15 April 2010, noting the various matters advanced also by the applicant from time to time, either at interview or by way of written submission. Thereafter, at paragraphs 43 to 86 (CB180 - 201), the Reviewer set out, in considerable detail, country information. It is readily apparent, as is stated in paragraph 43 of the Reviewer’s decision, that “I have had regard to country information specifically referred to and cited in the submissions provided on behalf of the claimant and in the RSA. I have also had regard to a very large volume of information concerning Afghanistan from a number of sources...”
The information disclosed is summarised in part at paragraph 36 of the Reviewer’s decision (CB187) as follows:
a)The Taliban are not specifically targeting/killing Hazara, Shi’as.
b)Kabul now has a large Hazara population; The Taliban have scant influence there and it would be relatively easy for new arrivals to integrate into the city where they can move freely.
c)Returnees, including failed asylum seekers from the West, are not targeted for that reason alone.
That information was all discussed with the applicant in terms.
At paragraphs 72 to 85 (CB197 - 201), the Reviewer set out in considerable detail the circumstances in Kabul. The decision noted that the proportion of the population of Kabul that is Hazara is not the subject of exact census data, and that some sources put the population as being as high as 40 per cent. At paragraph 111 (CB206), the Reviewer dealt with the question of the security situation in Kabul. The Reviewer noted that the applicant stated that there were regular attacks in Kabul, and that the Afghan Government could not protect themselves, let alone Hazaras. It is true that the Reviewer’s analysis of this assertion was very much conducted in the context of whether such attacks would target Hazaras in particular. Nonetheless, the Reviewer found at paragraph 111:
“Nor am I satisfied that the effects of the general insecurity and insurgency in Afghanistan including Kabul, without any additional factors increasing the risk, give rise to a well-founded fear of persecution for a Convention reason. The 2010 UNHCR report shows that there is not a situation of generalised violence in Kabul, which is an urban area under government control and not controlled by the Taliban or other anti-government elements.”
No submission has been advanced by the applicant that that finding was not open on the evidence.
It is clear from the decision of the Reviewer that he found that the applicant might well face significant risk in the event that he returned to Afghanistan in other areas, including the apparent former ancestral home in Zabul Province. Nonetheless, it is equally clear that the Reviewer turned his mind to what might occur to the applicant in the event that he returned to Kabul. The Reviewer expressly used the phrase “in the reasonably foreseeable future” at paragraph 115 of his decision. The Reviewer stated at paragraph 115, “I conclude that there is not a real chance that the claimant will face serious harm in the reasonably foreseeable future, in Kabul, amounting to persecution for a Convention reason.”
The submission advanced by the applicant that the Reviewer failed to turn his mind to the foreseeable future, in my view, falls foul of the direct observations that the Reviewer made. I accept the submission of the first respondent that the submission simply runs contrary to what the Reviewer said.
Ground 2 – Incorrect finding about the absence of evidence about returnees
Here, the submission made by the applicant is that the Reviewer’s finding that there was no credible evidence showing that persons returning from Western countries as failed asylum seekers were for that reason targeted and persecuted for a Convention reason was simply not open because there was indeed such evidence before the Reviewer.
I accept the submission from the applicant that a finding to this effect may, in the absence of evidence or alternatively, contrary to evidence not the subject of any critical or credible attack, be capable of giving rise to reviewable error (see Minister for Immigration and Multicultural and Indigenous Affairs v VOAO [2005)] FCAFC 50).
At paragraphs 64 to 71 of his decision, the Reviewer set out country information about this matter (CB196 - 197). That passage of the reviewer’s decision noted that some individuals have been victimised for being the subject of suspected apostasy or westernisation and further, others have been attacked on the footing that they were thought to have substantial amounts of cash or for other non‑Convention reasons. Nonetheless, it also notes country information that returnees would not, per se, face Convention‑related harm.
At paragraphs 112 to 113 of his decision (CB206 - 207), the Reviewer recapitulated this material. Relevantly, the Reviewer said:
“However, authoritative sources discuss the economic and social difficulties facing returnees, but do not refer to returnees being adversely targeted by non-State agents or government authorities. I further note and accept the September 2010 DFAT report which indicates contacts in Afghanistan did not believe Hazaras would be targeted because they had sought asylum in the west. There is no credible evidence before me which shows that persons returning from Western countries as failed asylum seekers are for that reason targeted and persecuted. As well, should the claimant relocate to Kabul, he would reside in an urban area under government control and not controlled by the Taliban or other anti-government elements. In light of the large and growing population of Kabul, including the large Hazara population there, I am not satisfied he would be so remarkable amongst the local communities there that he would be targeted as a returnee for any reason.”
The Reviewer went on to note the difficulties faced by persons who return who have become westernised atheists or un‑Islamic in their practices but in the circumstances, it seems to me that the Reviewer’s finding was well open to him on the material and does not disclose reviewable error.
Ground 3 – Misapplication of the principles relating to relocation to Kabul
This ground has two subsets. The first is to the effect that the Reviewer erred in assessing the applicant’s circumstances for the purposes of assessing the reasonableness of relocation; and exemplified by the Reviewer’s reference to the applicant’s capacity to “seek sustainable employment”. It was submitted that this was not relevant to the issue of the reasonableness of relocation. What was necessary was for the Reviewer to consider and make a finding in relation to the applicant’s ability to obtain employment.
The second error asserted is that the Reviewer had decided that the applicant had “potential community support” which did not involve any assessment of the likelihood that the applicant might obtain community support in Kabul. The applicant had claimed, without contradiction, that he had no family or other contacts in Afghanistan and the country information suggested that returnees without a family, land or social network would face difficulties. It was submitted that the Reviewer’s reasoning failed to address the reasonableness of relocation by the applicant to Kabul in any practical sense.
The first matter seems to me to rest upon a misunderstanding of the evidence. The fact is that the applicant was a person of resource and not without capacity, it would appear, to have earned a significant living, at least in Quetta. He raised some $7,000 to enable him to come to Australia. In my view, the emphasis upon the language (“seek” as opposed to “obtain”) falls into the difficulties identified by the High Court in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at [271]–[272]:
“The reasons for the decision under review are not to be construed minutely and finally with an eye keenly attuned to the perception of error.”
To say that somebody will struggle to “seek” to obtain employment is to turn your mind to the incidence of employment which is indicated by the word “obtain”. In my view, nothing turns on this difference.
So far as the question of community support is concerned, it is noteworthy that the Reviewer accepted (paragraph 104 at CB205) the DFAT report which asserted that:
“There is a cohesive Hazara community in Kabul, and the Hazara human rights contact assessed that it would be relatively easy for new arrivals to integrate into the city, where they can move freely.”
The Reviewer clearly considered the applicant’s likely future circumstances in Kabul (paragraphs 104-107) and the findings made appear to me to have been open to the Reviewer on the evidence before him.
Ground 4 – Failure to consider the security situation in Kabul or the applicant’s status as primary breadwinner for his family
In my view, the Reviewer did consider the security position in Kabul. This is set out at paragraph 111 of the decision (CB206). Relevantly, the Reviewer said:
“The 2010 UNHCR report shows that there is not a situation of generalised violence in Kabul, which is an urban area under government control and not controlled by the Taliban or other anti-government elements.”
I accept that the Reviewer’s later findings (paragraph 115) as to the lack of likely harm the applicant would suffer in Kabul were very much expressed in the context of anti‑Hazara violence. Nonetheless, the fact is that the Reviewer made a decision based on the materials before him to the effect that the applicant did not face violence in Kabul. The fact is that that decision was not one for which there was no evidence, and whatever reservations I might myself have about it, the reality is that the Reviewer considered the matter and made his decision. (As Lander and North JJ said in Minister for Immigration and Citizenship v SZNPG & Anor [2010] FCAFC 51 at [28]:
“An error of fact based on a misunderstanding of evidence of 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.”
The final matter raised was that the Reviewer had not considered the applicant’s position as the primary breadwinner in his family. This matter may be dealt with shortly. There was clear evidence before the Reviewer that the applicant’s younger brother had become the supporter of his family in Quetta, and the proposition that it was necessary for the Reviewer to consider the matter otherwise is plainly unsustainable.
Conclusion
For the above reasons, the application should be dismissed with costs.
I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Burchardt FM
Date: 6 December 2011
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