MZYNB v Minister for Immigration
[2011] FMCA 714
•4 October 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZYNB v MINISTER FOR IMMIGRATION & ANOR | [2011] FMCA 714 |
| MIGRATION – Independent Merits Reviewer – extension of time – failure to consider a claim of economic discrimination amounting to persecution. |
| Migration Act 1958 ss.91R, 477 |
| CZAW v Minister for Immigration and Citizenship [2010] FCA 879 Minister for Immigration and Multicultural and Indigenous Affairs v VOAO and VOAP [2005] FCAFC 50 Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; [1996] HCA 6 Rajakaruna & Ors v Minister for Immigration and Multicultural and Indigenous Affairs & Ors [2004] FMCA 1021 Rajakaruna [2002] MRTA 1814 |
| Applicant: | MZYNB |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | C. PACKER IN HIS CAPACITY AS INDEPENDENT MERITS REVIWER |
| File number: | MLG 732 of 2011 |
| Judgment of: | Riley FM |
| Hearing date: | 13 September 2011 |
| Date of last submission: | 13 September 2011 |
| Delivered at: | Melbourne |
| Delivered on: | 4 October 2011 |
REPRESENTATION
| Counsel for the Applicant: | Richard Knowles |
| Solicitors for the Applicant: | Victoria Legal Aid |
| Counsel for the First Respondent: | Mr Mosley |
| Solicitors for the First Respondent: | Australian Government Solicitor |
| Counsel for the Second Respondent: | No appearance |
| Solicitors for the Second Respondent: | Australian Government Solicitor |
ORDER
The time for filing the initiating application be extended to 25 May 2011.
DECLARATION
In recommending to the first respondent that the applicant is not a person to whom Australia owes protection obligations, the second respondent erred by failing to afford the applicant procedural fairness by not considering the claim that the applicant faced a real chance of economic discrimination amounting to persecution.
ORDER
The first respondent pay the applicant’s costs fixed in the sum of $6,240.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 732 of 2011
| MZYNB |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
And
| C. PACKER IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER |
Second Respondent
REASONS FOR JUDGMENT
Background
The applicant seeks an extension of time in which to file his application filed on 25 May 2011, and, in the event that that application is successful, to review the recommendation of the Independent Merits Reviewer (IMR) that Australia does not owe protection obligations to the applicant.
The extension of time application
It was common ground that the application was filed out of time, and that the matter could only proceed if an extension of time were granted under s.477 of the Migration Act 1958. The first respondent did not make any written submissions about the extension of time issue, but formally opposed the extension being granted.
The relevant matters to consider in determining an extension of time application are:
a)the extent of the delay;
b)the reason for the delay;
c)the prejudice to the applicant, the respondents and any other relevant people arising from granting or not granting the extension; and
d)the merits of the substantive claim.
The delay in this case was variously described as three weeks or three weeks and a few days. The reasons for the delay were explained by the applicant in his affidavit affirmed on 4 August 2011. His evidence was not challenged and I accept it. The applicant had originally been detained in Darwin but he was at the Maribyrnong Detention Centre when he was informed that the IMR had rejected his claim. His agent in Sydney asked for $25,000 if the applicant wanted further assistance. He had no money.
Another detainee told Victoria Legal Aid (VLA) that the applicant’s claim had been rejected by the IMR. VLA told the other detainee to send the applicant’s documents to VLA. VLA did not receive the applicant’s documents at that time. The applicant begged assistance from a priest and the Red Cross. VLA subsequently received his documents.
On about 7 May 2011, before a VLA lawyer was able to see the applicant at Maribyrnong, he was handcuffed and taken back to the detention centre in Darwin. On about 19 May 2011, someone visited the applicant in Darwin with an application prepared by VLA for him to sign. He did so, and the application was filed.
There will obviously be very serious prejudice to the applicant if an extension of time is not granted. The applicant also argued that it was particularly important for him to be granted an extension of time because that would enable him to have a right of appeal from this court to the Federal Court. The first respondent did not submit that there would be any particular prejudice to him if an extension of time were granted. There would be some prejudice to the public interest in the prompt resolution of legal proceedings involving public officers if the extension of time were granted.
There is some merit in the substantive proceedings, in the sense that a number of the matters raised are arguable.
I consider, in all the circumstances of this case, that it is appropriate to grant an extension of time. The delay is short. The explanation for the delay is more than reasonable. The prejudice to the applicant is grave while the prejudice to others is slight. There is adequate merit in the substantive proceeding.
Claims
The applicant said in his initial statutory declaration that he is a citizen of Afghanistan, having been born there in 1953. He said he was of Hazara ethnicity and Shia religion. He said that, in 2005, his shop, which was valued at $300,000, was forcibly taken from him by the Pashtuns. He said they also kidnapped his son and threatened to kill him unless the applicant sold the Pashtuns his house for $50,000, although it was valued at $500,000. The applicant said that he did sell his house to the Pashtuns for $50,000.
The applicant also said that a powerful person called Haji Nabi took 10 hectares of the applicant’s land in west Kabul. He said that he took legal proceedings to recover the land in 1993 and the proceedings concluded in 2005, when the judge received death threats from Haji Nabi.
The applicant later told the IMR that he was well known in Kabul but had no assets or relatives there. The applicant said that he and his family moved to Quetta, in Pakistan, in 2005. He said that he left there in 2009 and travelled to Malaysia and Indonesia. He was on a boat that was taken by the Australian Navy to Christmas Island on 4 January 2010.
The applicant claimed to fear persecution from the Taliban, Pashtuns and Sunni Muslims on the grounds of race, religion, membership of a number of particular social groups and actual or imputed political opinion.
The IMR’s statement of reasons
The IMR accepted that the applicant was a citizen of Afghanistan and of Hazara ethnicity and Shia religion. The IMR did not accept that the applicant faced a real chance of persecution by reason of his race or religion. The IMR accepted that the applicant lost his land in west Kabul before the Taliban regime gained power. However, the IMR considered that the land dispute concluded in 2005, and did not accept that it will cause the applicant to face persecution for a Convention reason in the foreseeable future.
The IMR did not accept that the applicant’s son was kidnapped, or that the applicant sold his house in the circumstances that he claimed. The IMR did not accept that the applicant’s shop was forcibly acquired. The IMR did not accept that the applicant faced persecution as a returnee, or for any Convention reason.
Ground 1: deteriorating situation in Afghanistan
The first ground of review in the amended application filed on 28 July 2011 is:
In recommending to the first respondent that the applicant not be recognised as a person to whom Australia owed protection obligations, the second respondent:
(a) failed to observe the requirements of procedural fairness;
(b) failed to apply correct legal principles.
Particulars
Before the second respondent, the applicant claimed that the security situation in Afghanistan was precarious and, for Hazara Shi’a Muslims like himself, could worsen in future.
The second respondent was obliged to consider whether or not the applicant faced a real chance of persecution upon any return to Afghanistan in the reasonably foreseeable future.
The second respondent was therefore obliged to consider the likely situation which would prevail into the reasonably foreseeable future in Afghanistan.
In the Independent Merits Review Report dated 23 March 2011 (the “the IMR report”), the second respondent failed to consider the likely situation which would prevail into the reasonably foreseeable future in Afghanistan and, in particular, in Kabul.
The applicant argued that he had clearly articulated a claim that the security situation in Afghanistan was deteriorating, and it was therefore necessary for the IMR to make findings in relation to that claim and assess the applicant’s prospects of harm in the foreseeable future cognisant of the claim of a deteriorating security situation.
The first respondent did not dispute that the applicant had claimed that the situation in Afghanistan was continuing to deteriorate. That claim was made by the applicant in various places, including in a submission at CB175, where it was said that:
The information contained in the DFAT report talks about the situation at present. It does not consider the wealth of credible information that indicates that the security situation throughout Afghanistan is deteriorating, the Taliban are becoming resurgent and are encroaching on areas where Hazaras traditionally reside.
The IMR said at paragraphs 59 and 63 of his statement of reasons that:
59.Professor William Maley has written several articles concerning the Hazaras in Afghanistan. In particular, his June and December 2010 articles, On the Position of the Hazara Minority in Afghanistan discusses in general: the deteriorating security situation throughout Afghanistan; the Australian and US travel warnings; the time it would take for the consolidation of new political structures; and hopes that the fall of the Taliban regime would rapidly produce a secure and stable country had not been vindicated.
63.The articles discuss the poor security conditions in Ghazni province, and refer to Thomas Ruttig, A New Taliban Front? (Kabul: Afghanistan Analysts Network, 18 June 2010) that conjectures ‘The main road into Jaghori, an important Hazara area, has been blocked raising fears of a new economic blockade or even an attack’. The articles refer to Hazara fears which are “gravely aggravated by the widespread claims from both Western political figures and President Karzai that some kind of reconciliation with the Taliban is required.” The articles contain a warning that:
It is of course the case that the situation for particular individuals and groups will wax and wane over time. This is true of all situations. In determining whether a fear of being persecuted for a Convention reason is well-founded, however, it is important to look beyond temporary, insignificant, or cosmetic changes. For example, the existence of prominent Hazara politicians tells one virtually nothing about the fears that may haunt the lives of ordinary Hazaras. This is equally true of the active involvement of some Hazaras in civil society groups in Kabul; civil society groups generally have little life beyond the capital city.
In his findings and reasons, the IMR adopted part of Professor Maley’s opinion, saying at paragraph 94 of his statement of reasons that:
I acknowledge … the situation for particular individuals and groups will wax and wane over time, but … it is important to look beyond temporary, insignificant, or cosmetic changes.
There was a footnote after the word “changes” which referred to a presentation to the IMR, the RRT and DIAC by Ms Halima Kazem in October 2010 and to Professor Maley’s articles including On the position of the Hazara Minority in Afghanistan from June 2010. The IMR’s decision was dated March 2011.
The IMR also noted at paragraph 99 of his statement of reasons that:
Indeed, positive reports on the improving, general situation of Hazara Shias have appeared. It might be suggested these are optimistic “best case scenario” articles. Nonetheless, in particular I note and accept the 21 February 2010 DFAT report that indicates although there is a resurgence of the Taliban, Hazaras are not currently targeted by the Taliban as in the past.
A footnote to the first sentence of that passage referred to articles dated 3 January 2010, 6 August 2007 and 8 November 2010.
The IMR used the words “the reasonably foreseeable future” repeatedly in his statement of reasons. That phrase was used:
a)in paragraph 102, in relation to the applicant’s race and religion;
b)in paragraph 109, in relation to the applicant’s loss of his land and his court case;
c)in paragraph 124, in relation to the applicant returning to Kabul; and
d)in paragraph 126 and 127, in relation to the overall conclusions.
The first respondent submitted that the applicant’s contention in relation to this ground invited the court to contravene the High Court’s direction in Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259, (1996) 70 ALJR 568, (1996) 136 ALR 481, [1996] HCA 6. In that case, Brennan CJ, Toohey, McHugh and Gummow JJ said at 271-2:
The Full Court recognised, on the face of the delegate’s assessment of the first respondent’s claim, “that the delegate correctly directed herself as to the test which she had to apply” (33). Later in its reasons the Full Court noted (34):
“Undoubtedly the delegate considered Mr Wu to have a genuine fear of persecution for a Convention reason. The question was whether there was objective support for that fear. The delegate was obliged to find that there was if there was a real chance of persecution. The expression ‘real chance of persecution’ is used in the reasons. We refer to par 4.6(4) as an example. Paragraph 12 … provides another. The delegate was thus aware of the test she had to apply. Her reasons are entitled to a beneficial construction. We should not take the view that she did not apply the correct test unless this appears clearly from what she has written.”
In other words, the delegate starts and finishes with the correct test; it is only some phraseology in between which provides the basis for a conclusion that she had slipped from an assessment of a real chance to an assessment of balance of probabilities.
When the Full Court referred to “beneficial construction”, it sought to adopt an approach mandated by a long series of cases, the best exemplar of which is Collector of Customs v Pozzolanic (35). In that case, a Full Court of the Federal Court (Neaves, French and Cooper JJ) collected authorities for various propositions as to the practical restraints on judicial review. It was said that a court should not be “concerned with looseness in the language…nor with unhappy phrasing” of the reasons of an administrative decisions-maker (36). The Court continued (37): “The reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error.”
Those propositions are well settled. They recognise the reality that the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed (38). In the present context, any court reviewing a decision upon refugee status must be aware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision. This has been made clear many times in this Court. For example, it was said by Brennan J in Attorney-General (NSW) v Quin (39);
“The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository’s power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power, and subject to political control, for the repository alone.”
Additionally, Kirby J said at 291:
1. The reasons under challenge must be read as a whole. They must be considered fairly. It is erroneous to adopt a narrow approach, combing through the words of the decision-maker with a fine appellate tooth-comb, against the prospect that a verbal slip will be found warranting the inference of an error of law (88).
Reading the IMR’s reasons as a whole, and fairly, and without an eye keenly attuned to the perception of error, it seems to me that the IMR took into account the applicant’s claim that the security situation in Afghanistan was deteriorating, as well as the evidence relating to that claim, and proceeded to consider the applicant’s prospects in the reasonably foreseeable future. That was as much as the IMR was required to do.
It is well established that an administrative decision maker is not required to uncritically accept every claim an applicant puts forward and is not required to address and expressly either accept or reject every item of evidence that an applicant puts forward. In this case, the IMR referred to evidence of a deteriorating security situation as well as to evidence of a more positive nature. It was for the IMR to assess all the material before him to form a view about the chance of the applicant facing serious harm in the reasonably foreseeable future.
It seems to me that the IMR did so. This ground is not made out.
Ground 2: s.91R
The second ground of the amended application filed on 28 July 2011 is:
In recommending to the first respondent that the applicant not be recognised as a person to whom Australia owed protection obligations, the second respondent failed to apply correct legal principles.
Particulars
The second respondent misconstrued or misapplied section 91R of the Act. Section 91R of the Act relevantly states that Article 1A of the Refugees Convention (as amended by the Refugees Protocol) (together, the “Convention”) does not apply in relation to persecution for one or more of the reasons in that Article unless the reason is the essential and significant reason, or those reasons are the essential and significant reasons, for the persecution.
In the IMR report, the second respondent required that any persecution of the applicant occur for one or more Convention-related reasons “alone” or “by themselves”.
Section 91R(1) of the Act provides as follows:
(1)For the purposes of the application of this Act and the regulations to a particular person, Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol does not apply in relation to persecution for one or more of the reasons mentioned in that Article unless:
(a)that reason is the essential and significant reason, or those reasons are the essential and significant reasons, for the persecution; and
(b)the persecution involves serious harm to the person; and
(c)the persecution involves systematic and discriminatory conduct.
(2)Without limiting what is serious harm for the purposes of paragraph (1)(b), the following are instances of serious harm for the purposes of that paragraph:
(a) a threat to the person's life or liberty;
(b) significant physical harassment of the person;
(c) significant physical ill-treatment of the person;
(d)significant economic hardship that threatens the person's capacity to subsist;
(e)denial of access to basic services, where the denial threatens the person's capacity to subsist;
(f)denial of capacity to earn a livelihood of any kind, where the denial threatens the person's capacity to subsist.
(3)For the purposes of the application of this Act and the regulations to a particular person:
(a)in determining whether the person has a well-founded fear of being persecuted for one or more of the reasons mentioned in Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol;
disregard any conduct engaged in by the person in Australia unless:
(b)the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person's claim to be a refugee within the meaning of the Refugees Convention as amended by the Refugees Protocol.
The applicant argued that the IMR misunderstood the test for determining refugee status. The applicant argued that the IMR demonstrated a misapprehension about the relevant test, in that the IMR evidently thought that, to satisfy the test, it was necessary for the applicant to be persecuted solely for one or more Convention reasons. In fact, the applicant will satisfy the test if he is persecuted for any number of Convention or non-Convention reasons, as long as one or more Convention reasons is or are the essential and significant reason or reasons for the persecution.
The applicant argued that the IMR’s misapprehension was demonstrated by his use of the words “alone” and “by themselves” in the following passages of the IMR’s statement of reasons:
95.… However, the reports do not show that Hazaras and Shia Muslims have been targeted and persecuted for the reason of their minority status alone (that is, for reasons of their ethnicity/religion/imputed political opinion/membership of a particular social group).
96.… This occurrence does not support the contention that Hazara Shias are persecuted for those reasons alone, or that as Hazara Shias they have an imputed political opinion.
102.… In sum, I do not accept that the male claimant’s ethnicity and minority religion by themselves, mean that in Afghanistan in the reasonably foreseeable future, he faces a real chance of serious harm amounting to persecution by non-State agents (Pashtuns, Sunni Moslems, Taliban), or government authorities, for the Convention reasons of his race/religion/imputed political opinion/membership of a particular social group. I have therefore turned to his particular and individual claims: an approach endorsed by the UNHCR.
125.… I do not accept that the male claimant’s ethnicity and minority religion by themselves, mean that in Afghanistan he faces a real chance of serious harm amounting to persecution by non-State agents (Pashtuns, Sunni Moslems, Taliban), or government authorities, for any Convention reason.
However, the IMR also demonstrated in other parts of his statement of reasons an awareness of s.91R of the Act. Those parts are as follows:
6.… ss.91R to 91T qualify some aspects of Article 1 of the Convention for the purposes of the application of the Act and the regulations to a particular person.
118.… I accept an economic motive may co-exist with a Convention motive, but I do not accept that the essential and significant reason for the feared harm is his imputed political opinion or membership of the particular social groups I have considered.
120.… I do not accept that the essential and significant reason for the feared harm is because the claimant is a person returning from a Western country as a failed asylum seeker.
The words “essential and significant reason” are taken from s.91R. The use of those words indicates the IMR was aware of the effect of s.91R.
Moreover, the detail of the statement of reasons shows that the IMR first of all considered whether, simply by virtue of being of Hazara ethnicity and Shia religion, the applicant was at risk. The IMR considered that those factors, by themselves, did not expose the applicant to a real chance of serious harm. Consequently, the IMR then turned to a consideration of the applicant’s particular claims. This much is clear from paragraph 102, which is set out above.
The next passage relied on by the applicant, paragraph 125, is in the IMR’s conclusion. The IMR again said, in effect, that, simply being of Hazara ethnicity and Shia religion, would not expose the applicant to a real chance of serious harm, and then went on to summarise the conclusions on the other aspects of the claims.
In my view, reading the statement of reasons as a whole, it is clear that the IMR correctly understood and applied the relevant test. The IMR was well aware of the meaning of s.91R of the Act. The words “alone” and “by themselves”, in context, mean “without more”. They do not mean that that the IMR was under the misapprehension that, if the applicant faced a real chance of serious harm essentially and significantly for Convention reasons but also for a subsidiary non-Convention reason, he would not meet the relevant test. This ground is not made out.
Ground 3: real chance test
The third ground of the amended application filed on 28 July 2011 is:
In recommending to the first respondent that the applicant not be recognised as a person to whom Australia owed protection obligations, the second respondent failed to apply correct legal principles.
Particulars
In assessing whether or not the applicant’s fear of persecution in Afghanistan was well founded, the second respondent failed to apply the “real chance” test.
The applicant argued that the IMR used the words to the effect of “will face persecution” rather than “will face a real chance of persecution” on two occasions, and thus failed to apply the correct test. The two relevant passages are as follows:
109.… I do not accept the land dispute, concluded some years ago, will cause the claimant to face persecution in Afghanistan for a Convention reason, in the reasonably foreseeable future.
124.… I do not accept that the claimant will face serious harm in the reasonably foreseeable future, in Kabul, amounting to persecution for a Convention reason.
The first respondent noted that the IMR set out the correct test at paragraph 4 of the statement of reasons, using the words “well-founded fear of persecution”, and used the words “real chance of persecution” at paragraphs 102, 125, 126 and 127. The first of those paragraphs was a summary of the conclusions to that point and the last three of those paragraphs were in the conclusion of the entire statement of reasons.
As was stated in Wu Shan Liang in the passage set out above, the decision maker’s reasons are entitled to a beneficial construction and the reviewing court should not be concerned with looseness of language unless a departure from the correct test is clear from what has been written.
Similarly to Wu Shan Liang, the IMR in this case set out the correct test at the commencement of his statement of reasons and used the correct terminology on a number of occasions, particularly in the context of reaching conclusions. I do not consider that the IMR in this case failed to apply the correct test. This ground is not made out.
Ground 4: Burden or standard of proof
The fourth ground of the amended application filed on 28 July 2011 is:
In recommending to the first respondent that the applicant not be recognised as a person to whom Australia owed protection obligations, the second respondent:
(a) failed to observe the requirements of procedural fairness;
(b) failed to apply correct legal principles.
Particulars
The second respondent impermissibly imposed a standard or burden of proof on the applicant.
It is well established that the applicant does not bear an onus of proof in administrative law proceedings. In the present case, the applicant argued that the IMR imposed an impermissible standard of proof by saying that he did not find certain aspects of the evidence to be “compelling”. The particular passages referred to are:
107.… I do not find this letter to be compelling written evidence of the circumstances it purports to corroborate.
108.… I do not find this letter to be compelling written evidence that corroborates the claims.
116.… However, the claimant has not provided any compelling evidence that he has modified his religious views or been Westernised to any degree by his time outside Afghanistan.
The applicant relied on the decision of Bennett FM (as her Honour then was) in Rajakaruna & Ors v Minister for Immigration and Multicultural and Indigenous Affairs & Ors [2004] FMCA 1021 at [39]. In that case, her Honour allowed the application, apparently for the reason that the Tribunal had applied “a standard of proof of ‘compelling evidence’”, among other reasons. Unfortunately, her Honour’s reasons do not include an extract of the offending passage. However, it appears to be in paragraph 30 of the reasons of the Migration Review Tribunal in Rajakaruna [2002] MRTA 1814 , which is as follows:
30. The form of assistance provided by the visa applicant to the nominator is taking her for dialysis three times a week and assisting with domestic chores as well as companionship. The nominator has a husband and a daughter who live with her. While it was stated that as the husband works, and the daughter works and is a student, there was no evidence from them that they were unwilling to provide assistance to the nominator. It is reasonable to expect that a husband and a daughter would assist and would be willing to assist unless there were special circumstances which prevented them. While dialysis is a serious matter, many people are able to get themselves to treatment centres on their own, and again there was no compelling evidence why the nominator could not travel on her own. Also there would appear to be not only the husband and daughter who could arrange their work to assist her, but a range of community services that could be used. Often such assistance is available from dialysis units themselves or from the Caulfield Hospital. The experience of the assistance provided by Gracelands Manor while the visa applicant was overseas indicated that there was help from other services, with the particular facility being located opposite the nominator and available to her by a telephone call. No evidence was presented that community services were unavailable for the nominator or unsuitable for her condition. Some of the needs of the nominator could be catered for by using such services as visiting nurse and such services in addition to the care of the husband and daughter (emphasis added).
The applicant also provided an extract from The Australian Oxford Dictionary, Second Edition, OUP, which defines “compel” as “force, constrain”, “bring about (an action) by force” and “drive forcibly”.
It defines “compelling” as “rousing strong interest, attention, conviction, or admiration”.
The first respondent relied on the Wu Shan Liang principle and a number of authorities in which the Federal Court and Federal Magistrates Court considered that the use by the Refugee Review Tribunal of the word “compelling” in its assessment of the evidence did not lead to a finding of jurisdictional error.
Firstly, the first respondent referred to CZAW v Minister for Immigration and Citizenship [2010] FCA 879 at [13] and [14] where Buchanan J said:
13.The critical passages in the decision of the RRT appear to me to be:
41. …
42.The Tribunal has considered the applicant’s core claim relating to threats against him in Sri Lanka by unknown persons for unknown reasons. It finds that this claim lacks credibility. The applicant has only provided vague and broad information in support of the claim. He speculates that it may be the LTTE, or the persons seeking money from him, or persons who envy him. However, he has not been able to provide compelling evidence that any of these individuals or groups have a genuine interest in him. …” (emphasis added).
14.Findings of this kind fall squarely within the statutory mandate of the RRT. They are findings about the merits of the appellant’s claims to be a refugee to whom Australia has protection obligations. In the absence of jurisdictional error, findings of this kind are not reviewable in the FMCA or in this Court. In my view, no jurisdictional error is apparent in the approach taken by the RRT or from the terms of its decision.
Secondly, the first respondent referred to SZCXF v Minister for Immigration and Citizenship (2008) 100 ALD 355; [2008] FCA 123 at [18] and [19] where Tamberlin J said:
18.Accordingly, in my view, the Federal Magistrate was correct to find that the Tribunal had not erred in law when makings (sic) its findings on this point. Having reviewed both the submissions of the appellant, and having referred to the independent country information about the role of women in Iranian law, the Tribunal concluded that:
‘…there are a number of reasons why, without more compelling evidence against him, it is highly unlikely that the Iranian authorities would have treated assertions made by [the appellant’s] ex-wife or her relatives as reliable.’
19.These grounds of appeal must therefore be rejected. (emphasis added)
Thirdly, the first respondent referred to SZFSX v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FMCA 1362 at [13] and [14] where Smith FM said:
13.The Tribunal noted that the applicant had had no difficulty obtaining a valid passport, and said that it was satisfied “that the applicant does not have an adverse political profile and (the Tribunal) has no reason to believe that on his return to China he would be likely to initiate action which would change this situation.” The Tribunal said:
the Tribunal has no compelling evidence which would lead it to conclude that the Chinese authorities have targeted the applicant, and that there would be a real chance of persecution on his return to China now or in the foreseeable future.
14.The Tribunal’s reference to “no compelling evidence” in this sentence may appear unfortunate. However, the end of the sentence shows that it was alive to the real chance test, and I consider that its reference to “no compelling evidence” should be understood as meaning no more than that it was not satisfied by the evidence which was before it to arrive at a favourable conclusion when applying that test.
The first respondent argued that the passage the applicant relied upon from Rajakarana was obiter, was said in a different context, was inconsistent with CZAW, SZCXF and SZFSX and should not be followed.
The applicant argued that CZAW should not be followed because the applicant in that case was unrepresented, and had not argued that the use of the word “compelling” indicated the Tribunal had imposed an impermissible standard of proof.
CZAW and SZCXF are both decisions of the Federal Court on appeal. Consequently, I am bound by them. However, they did not squarely decide the relevant point, following argument about it. Rather, the Federal Court in both cases seems to have accepted in passing that the use of the word “compelling” would not necessarily invalidate a Tribunal decision.
I ought to follow a decision of another Federal Magistrate, unless I am satisfied that the decision is clearly wrong. In this case, there are two decisions which appear to say opposite things.
I am not satisfied that I should not follow Rajakaruna for the reason that the relevant statement was obiter. It appears to me that her Honour advanced various reasons for allowing the application, any one of which would have led her Honour to the same conclusion. Therefore, the reason relevant to the present case was not obiter.
Moreover, I do not consider that the context of Rajakaruna was materially different from the present context. What is in question in both cases is an administrative decision, and the same principles apply.
However, Rajakaruna does differ from SZFSX. I am obliged to choose between them. In all the circumstances, I consider that I ought to follow SZFSX. That is because it is more recent, because the issue is more clearly articulated and resolved and because I consider it to be correct.
Like Smith FM in SZFSX, I consider the use of the of the word “compelling” in this case to be unfortunate but not fatal. The IMR demonstrated elsewhere in his statement of reasons that he was well aware of the real chance test. It seems to me, reading the IMR’s reasons as a whole, that the use of the word “compelling” was a rhetorical flourish, rather than an indication of the imposition of an impermissible standard of proof. This ground is not made out.
Ground 5: Apostasy
The fifth ground of the amended application filed on 28 July 2011 is:
In recommending to the first respondent that the applicant not be recognised as a person to whom Australia owed protection obligations, the second respondent:
(a) failed to observe the requirements of procedural fairness;
(b) failed to apply correct legal principles.
Particulars
The second respondent was obliged to deal with the applicant’s claim that he had a well-founded fear of persecution in Afghanistan because he was rumoured to have converted to Christianity while in Australia and failed to do so.
The applicant said that the IMR failed to deal with his claim that he was rumoured to have converted to Christianity. This claim is contained in submissions at CB226 and CB227 as follows:
At CB 226:
· His son cannot go to school because of a local rumour that our client has gone to Australia in order to convert to Christianity.
At CB 227:
Our client has been informed by his son that his (the son’s) classmates at school have made statements to the effect of “we know that your father is a Christian”.
The perception of our client as Christian, i.e. someone who has converted from Islam to Christianity is significant. Independent information in relation to Afghanistan provides compelling support for the contention that those who are perceived to have forsaken Islam face a real chance of being persecuted in Afghanistan. In this regard we refer to the USSD IRF Report for 2009 which confirms that conversion from Islam is considered apostasy and is punishable by death under some interpretations of Shari’a.
In light of the evidence which suggest our client has been identified as a Christian we submit that there is a substantial basis for concluding that his fear of persecution upon his return to Afghanistan will be realised. It would therefore be contrary to Australia’s obligations under the Refugees Convention and the Convention Against Torture amongst other international instruments, to return our client to Afghanistan.
The IMR dealt with this point at paragraph 116 of his statement of reasons, which is as follows:
The claimant claims he would be persecuted in Afghanistan as a returnee. His claim is that having been in a Western country, it is rumoured he has converted to Christianity and so faces death for apostasy. However, I have concerns with this claim made late in the piece. Some sources refer to the potential adverse treatment of returnees to Afghanistan if they had become Westernised, atheist or un-Islamic in their practices. However, the claimant has not provided any compelling evidence that he has modified his religious views or been Westernised to any degree by his time outside Afghanistan. In sum, I do not accept the claimant would be perceived as an apostate if he returns to Afghanistan.
The applicant acknowledged that the rumours were said to have occurred in Pakistan, where the applicant’s son was living, rather than in Afghanistan, where the applicant’s risk of persecution needed to be assessed. However, the applicant said that any consideration of whether a rumour in Pakistan might spread to Afghanistan was a question for the IMR rather than the court. I accept that.
The applicant argued that the IMR simply found that the applicant had not actually changed his religious views or been Westernised, but did not squarely deal with the issue of rumours. Consequently, the applicant argued that, even if the IMR had rejected the existence of the rumours, it was not known how confidently that rejection was made. The applicant referred to Minister for Immigration and Multicultural and Indigenous Affairs & Ors v Rajalingam (1999) 93 FCR 220; (1999) 56 ALD 43; [1999] FCA 719 where Sackville J said at [55] and [56]:
55It can be seen from this passage that if the RRT finds that it is only slightly more probable than not that an alleged relevant event has not occurred, it must take into account the chance that it did occur when determining whether there was a well-founded fear of persecution. It is clear that the comment in the joint judgment is not confined to a past event (as in Wu Shan Liang) involving persons other than the applicant. Their Honours give as an example a finding that it was slightly more probable than not that the applicant had not been punished for a Convention reason.
56If, on the other hand, it appears that the RRT had no "real doubt" that its findings were correct, it is not bound to consider whether those findings might be wrong. Nothing in the reasoning of the joint judgment suggests that if the RRT, although apparently having no real doubt as to its findings, should have had doubts, it is bound to consider the possibility that the relevant event might have occurred. Doubtless, this is because an objective test of this nature would require the Court to transgress the boundaries of judicial review, by considering the merits of the RRT's decision. The passage does not explicitly address the approach that should be taken by the Court where the RRT does not make it clear whether it had no real doubt about its findings as to past events (or non-events), or whether it made the findings on the bare probabilities.
It is clear from paragraph 116 of the IMR’s statement of reasons that he was aware of claim about the rumours. However, for various reasons, the IMR concluded paragraph 116 by saying that he did “not accept that that the claimant would be perceived as an apostate if he returns to Afghanistan.” That finding would appear to subsume the issue about the rumours.
However, the applicant argued that the conclusion was reached without proper regard to the claim about the rumours. I cannot accept that submission. The IMR mentioned the rumours just a few lines before the conclusion on apostasy. On my reading of paragraph 116, the IMR considered that, even if there had been rumours as claimed, the applicant would not be perceived as an apostate because he did not appear to be one.
I do not consider that there is any reason to suppose that the IMR had any real doubt about this view. Accordingly, there was no need for the IMR to follow the pathway in [55] of Rajalingam. This ground is not made out.
Ground 6: requirement to consider the claims cumulatively
The sixth ground of the amended application filed on 28 July 2011 is:
In recommending to the first respondent that the applicant not be recognised as a person to whom Australia owed protection obligations, the second respondent:
(a) failed to observe the requirements of procedural fairness;
(b) failed to apply correct legal principles.
Particulars
The second respondent was obliged to deal with the applicant’s claims to be a refugee cumulatively and failed to do so.
The applicant argued that the IMR failed to consider the applicant’s claims cumulatively, even though the IMR expressly stated at paragraph 127 of his statement of reasons that he had done so. The applicant said that the IMR’s statement of reasons shows that it dealt separately with the applicant’s status as an Hazara Shia on the one hand and as a returnee on the other.
The statement of reasons does deal with each claim made by the applicant separately. This was no doubt done for reasons of clarity and practicality. However, after setting out a summary of the applicant’s claims, the IMR said, in the last sentence of paragraph 89 of his statement of reasons:
I have considered cumulatively all of his claims to be a refugee.
The statement of reasons then sets out a consideration of the various claims one by one but goes on to say in the conclusion:
125.I do not accept that the male claimant’s ethnicity and minority religion by themselves, mean that in Afghanistan he faces a real chance of serious harm amounting to persecution by non-State agents (Pashtuns, Sunni Moslems, Taliban), or government authorities, for any Convention reason.
126.Nor do I accept that his particular and individual claims and mental condition show that he faces a real chance of serious harm amounting to persecution. I find that the land dispute was concluded some years ago. I do not accept the story concerning his son’s abduction and forced house sale. Although I accept he no longer operates a shop in Kabul, on the material before me I do not accept the shop he operated the business from was forcibly seized or that the shop closure caused him a significant financial loss. I conclude that the particular occurrences I do accept, together with his status as a Hazara landowner and businessman, will not cause the claimant to face serious harm in Kabul in the reasonably foreseeable future from anyone. I conclude the security situation in Kabul does not prevent him from returning to reside there, and I do not accept he has a well-founded fear of persecution as a returnee. Based on the material before me, I conclude that in Kabul there is not a real chance he will come to the adverse attention of the Taliban, extremist groups or powerful Pashtuns in the reasonably foreseeable future (emphasis added).
127.In sum, after considering his claims cumulatively, I conclude 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. I do not accept that in Afghanistan he will face a real chance of persecution for reason of his race, religion or political opinion (real or imputed). I do not accept that in Afghanistan he would face a real chance of persecution for reason of membership of a particular social group or for any other Convention reason.
It seems to me to be clear from those paragraphs that the IMR considered the cumulative effect of those matters that it accepted.
In particular, I consider that a fair reading of the sentences in bold from paragraph 126 shows that the IMR did consider the cumulative effect of the applicant being an Hazara, Shia, landowner, businessman and returnee. This ground is not made out.
Ground 7: no credible evidence
The seventh ground of the amended application filed on 28 July 2011 is:
In recommending to the first respondent that the applicant not be recognised as a person to whom Australia owed protection obligations, the second respondent:
(a) failed to observe the requirements of procedural fairness;
(b) failed to apply correct legal principles.
Particulars
In the IMR report, the second respondent stated that “[t]here 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 for a Convention reason”. There was such evidence before the second respondent.
The applicant argued that there was evidence before the IMR that showed that returnees to Afghanistan were targeted for that reason. The applicant argued that by failing to recognise that, the IMR made the error identified in Minister for Immigration and Multicultural and Indigenous Affairs v VOAO and VOAP [2005] FCAFC 50.
However, in VOAO, the Tribunal said, in effect, that there was no evidence of a particular matter when in fact there was. That was held at [13] to be a jurisdictional error, preferably described as a failure to take into account relevant material.
In the present case, by contrast, the IMR said there was no credible evidence of the relevant matter. That is a completely different thing.
It is for the IMR to determine the credibility and weight to be given to particular items of evidence.
The applicant argued that it was “unclear” how the IMR could have found the relevant evidence less than credible, given that it was a DFAT report. However, the IMR explained its view of the evidence on this issue at paragraph 118 of his statement of reasons:
118.Country information shows there have been incidents of harm to deportees usually where they were known or suspected of returning with substantial amounts of cash. Nonetheless, those incidents appear to be very isolated and relate to their particular circumstances and/or the general insurgency.
That was the IMR’s view of the facts, which he was entitled to have.
The applicant also noted that the first respondent had recently consented to another matter being remitted by the court to the IMR on exactly the same ground as the one presently under consideration. The applicant said that, for reasons of consistency in decision making, the same result should apply in the present case.
I am not sure that the two cases are relevantly identical. However, even if they were, I can only decide that an error has been made in this case if I am actually satisfied that it has been made. For the reasons explained above, I am not so satisfied. This ground is not made out.
Ground 8
The eighth ground of the amended application filed on 28 July 2011 is:
In recommending to the first respondent that the applicant not be recognised as a person to whom Australia owed protection obligations, the second respondent:
(a) failed to observe the requirements of procedural fairness;
(b) failed to apply correct legal principles.
Particulars
Before the second respondent, the applicant claimed that, upon any return to Afghanistan, he would face economic discrimination amounting to persecution as a result of his status as a Hazara Shi’a Muslim and as a returnee without any connections in Kabul.
The applicant said that his claim of economic persecution was clearly raised but not dealt with by the IMR. The particular matters claimed by the applicant were contained in his adviser’s submission made on or about 2 August 2010 and the submission dated 24 January 2011, the relevant parts of which are as follows:
Fear of suffering serious economic hardship because of his ethnicity and faith
…
In our submission, the independent information that has been cited above is sufficient to establish a substantial basis for that our client’s fear will be denied (sic) employment opportunities / a reasonable wage because of his Hazara ethnicity / Shi’a faith.
We submit that the scale and severity of the exploitation that the applicant would face because he is a Hazara, as revealed above, is sufficiently grave to equate to a denial of an ability to earn a livelihood that threatens our client’s capacity to subsist and is therefore sufficient to constitute persecution.
…
While unemployment in Afghanistan is estimated by the CIA to be approximately 35% and Oxfam has estimated it to be 40% (ie more than one in three people); with unemployment amongst Hazaras being considerable worse. Moreover, the ability of Hazaras to find lucrative work is made even more difficult because of ongoing discrimination against Hazaras throughout Afghanistan. The US Department of State’s Report on Human Rights Practices in Afghanistan for 2009 provides the following insight in relation to the extent to which Hazaras face economic oppression:
“Ethnic minorities continued to face oppression, including economic oppression. Dasht-i Barchi, one of Kabul’s poorest neighbourhoods, was home to a large Hazara population. Average earnings per day were 13 Afghanis (25 cents) per person, although the minimum wage was 63 Afghanis ($1.25) per day; average household size was nine to 10 persons. In Dasht-i Barchi, 60 percent of all families rented their homes and were therefore subject to landlord exploitation; 50 percent of families’ income went to cover rent, and families moved frequently.”
…
Unemployment in Afghanistan is estimated by the United States Department of State at approximately 35%, with Oxfam placing the figure at 40%, however, unemployment rates amongst Hazaras are considerably higher, a by-product of centuries of sectarian persecution. Moreover, the ability of Hazaras to find lucrative work is made even more difficult because of continuing and pervasive discrimination against Hazaras throughout Afghanistan. The US Department of State Report on Human Rights Practices 2009 – Afghanistan asserts that Hazaras in Kabul face economic discrimination and harassment, with average earnings of 13 Afghanis per day (despite a minimum wage of 63 Afghanis per day) and average household sizes of 9 to 10 persons.
…
It is apparent from our client’s evidence that he fears that in the reasonably foreseeable future he will be:
1. killed or be seriously harmed by the Taliban; and/or
2. discriminated against so severely by the Afghan government and Afghan society generally that he will not be able to support himself or his family; that is to say, they will not be able to subsist.
…
Discrimination as a Serious Harm
The above evidence confirms that the longstanding and substantial animus towards the Hazara community from members of other ethnic groups and the majority Sunni Muslim population continues to pervade throughout Afghan society and fuel discrimination against Hazaras.
The discrimination affects Hazara in two ways: it prevents them from securing employment and leads to them being paid less than other members of Afghan society for the work that they do. These problems are exacerbated by extremely weak labour market conditions in Afghanistan.
As we noted above, the US State Department has indicated that Hazaras in Kabul earn on average 13 Afghanis per day. While the US State Department’s findings relate to Kabul, we submit that they are illustrative of a broad pattern of extremely oppressive discrimination against Hazaras. Our client, were he to return to Kabul, would confront such discrimination without capital or property, which have previously allowed him to provide for his family; he would hence be forced to earn a livelihood in a hostile society and despite extremely high unemployment, without significant saleable skills or family connections in Kabul.
The World Bank estimates that 36% of the Afghan population live below the poverty line. They have set the poverty line at 1255 Afghans per person per month, which allows for “the typical cost of attaining 2100 calories per person per day and of meeting some basic nonfood needs”. To put that in perspective, even if our client is able to consistently work and earn three time the US State Department estimate of 13 Afghans per day, both of which appear unlikely, he will still earn less than what is required to provide for his survival needs; to say nothing of the needs of his family members who are unable to locate such lucrative and consistent employment. The inability of our client to provide for himself will be exacerbated by the fact the he needs to provide for his family members.
As a part of any analysis of whether discrimination amounts to persecution, it is incumbent on you to consider our client’s particular circumstances, and how the discrimination is likely to affect him personally. In her decision, the Delegate notes that our client has been living and working in Kabul for a number of years, construing this as evidence of his ability to support his family should he return to Kabul. Independent country information above indicates the high levels of unemployment for unskilled persons in Kabul, particularly among the Hazara community. Our client does not have the capital to purchase any new property in Kabul, having depleted his savings facilitating his journey to Australia. Furthermore, our client does not have a reasonable prospect of reclaiming his family’s lands in order to raise such capital, given the nature of his persecution and the cause of his initial flight to Australia. Were our client to return to Kabul, our client, unable to return to work as a grocery store owner, would lack any means of providing for his family.
In light of these circumstances, our client’s ability to subsist and support his family, even if they were to relocate to Kabul is severely restricted by the discrimination experienced by unskilled Hazara workers in Kabul in accessing employment opportunities. It is our submission that this discrimination, the effects of which are increased by our client’s inability to access protective factors such as his familial lands, familial connections or community links, amounts to a serious threat to our client’s ability to subsist, constituting ‘serious harm’ for Convention purposes.
We submit that above information provides compelling support for the conclusion that the discrimination our client will face in Afghanistan will cause him financial hardship that will be so severe it will likely affect his ability to subsist in a meaningful way. By so doing, the discrimination he will suffer and the consequent economic hardship is properly characterized as “persecution” for the purposes of Article 1A(2) and “serious harm” for the purpose of section 91R(2).
The first respondent did not dispute that a claim of economic discrimination amounting to persecution was raised by the applicant. However, the first respondent argued that the claim of economic discrimination amounting to persecution was considered in the context of other matters, and, in particular, was subsumed in the IMR’s consideration of social discrimination at paragraph 101 of the statement of reasons. That paragraph is as follows:
101.Additionally, I do not accept that the social discrimination against Hazaras referred to by some sources including the UNHCR, the DFAT and the US Department of State is so severe that it amounts to persecution, and there is nothing in the claimant’s case to suggest that he has suffered or may suffer social discrimination that would amount to persecution because of his minority ethnicity and religion status.
I also note paragraph 124 of the IMR’s statement of reasons, which is as follows:
The National Geographic describes the relative progress for a growing Hazara middle class in Kabul. Indeed, a FAQ sheet on a Hazara organization website (hazara.net) estimates Hazaras may constitute about 40% of Kabul’s population (although I acknowledge other reports suggest this percentage is lower). The country’s principle Shiite mosque Takia Khan Umumi stands in Kabul. The claimant reasonably has business skills which would enable him to seek meaningful employment in Kabul. He does not have family in Kabul, but I note and accept the 29 September 2010 DFAT report that indicates “But there is a cohesive Hazara community in Kabul, and a Hazara human rights contact assessed that it would be relatively easy for new arrivals to integrate into the city, where they can move freely.” Based on the material before me, I conclude the claimant has potential community support in an urban area with established and developing infrastructure, under effective Government control and with a sizeable, dynamic Hazara population. I do not accept the claimant will face serious harm in the reasonably foreseeable future, in Kabul, amounting to persecution for a Convention reason (emphasis added).
However, the IMR in paragraphs 8 to 49 of his statement of reasons gave a detailed summary of the applicant’s claims. That summary included at paragraph 25 a summary of the submission made on or about 2 August 2010 and the submission dated 24 January 2011. Those summaries are as follows:
25. Additional information before me includes:
· An undated written submission perhaps made on 2 August 2010. This set out the claimant’s claims and discussed: the rocket attack on his house in 1996; in 2005 the kidnapping of his son Yasir and that he was forced to sell his house for 10% of the market value; a separate incident in 2005 when Taliban militants in Kabul forced him to surrender his shop to militants; and in 1993 the seizing of land he owned in West Kabul by the government and how his attempts to recover the land through the legal system were frustrated by corruption. The submission indicated “Our client claims that this land was seized by Pashtun-dominated government as part of widespread persecution of Hazaras”. The submission argued the Convention nexus was the claimant would be persecuted by the Taliban and other extremist groups in Afghanistan because of his race (Hazara) , membership of a particular social group (Hazara) and/or religion (Shia Muslim). Country information was referred to and discussed.
…
· A submission dated 24 January 2011. This set out the claimant’s claims, including that “Our client fought a lengthy court battle to recover his land, with the courts ultimately finding in Haji Nabi’s favour due to threats and intimidation”. The claimant’s friend whose land was also confiscated has since been imprisoned and his former lawyer murdered. The submission argued the claimant would be persecuted by the Taliban and other extremist groups in Afghanistan because of his race (Hazara), membership of a particular social group (Hazara, landowners), imputed political opinion (opposition to corruption in Afghanistan) and/or religion (Shia Islam).
Those paragraphs do not include any reference to the claim that the applicant would face economic discrimination amounting to persecution.
The IMR set out at paragraph 87 of his statement of reasons a detailed summary of the summary, so to speak, of the applicant’s claims. That further summary is as follows:
Essentially, the claimant claims to fear persecution in Afghanistan because:
· He is a Hazara and Shia Muslim. Accordingly, he will suffer discrimination and serious harm in Afghanistan as a member of a minority ethnic group and minority religious group. He will suffer serious harm from the Taliban, Pashtuns and Sunni Muslims in Afghanistan.
· He suffered harm in the past as a result of his ethnicity and religion. In particular he refers to 3 occurrences:
a. In 1993 a powerful person with political connections, Haji Nabi, illegally took land he owned in West Kabul. A subsequent court case he brought went from 1993 to an unsuccessful conclusion in 2005, after Haji Naba threatened the judge. The Taliban regime had taken land from Hazaras and destroyed all relevant records of land ownership. He seeks to corroborate this claim with an undated, handwritten letter signed by 5 signatories and witnessed by an Imam; and a letter of support dated 18 January 2011 from Abdullah Yawary that indicated he went to Afghanistan in 2007 and “I heard that a group of gun men were after him”.
b. In 2005 Qari Ghamai (formerly a Taliban Commander and now a judge) took his shop by force, although the claimant was able to sell his stock stored at a warehouse. Qari Ghamai threatened that if he tried to reclaim the shop he would be killed.
c. Also in 2005 his son Yasir was abducted by Pashtuns (Haji Sheir Alam, a Commander who serves Sayaf) and he was forced to sell his house valued at $US500,000 for US$50,000 in order to get Yasir back. Yasir was returned once the transfer was finalised.
d. Others were involved with land disputes and after a TV station became involved the claimant decided to leave Kabul for Pakistan. The claimant’s friend whose land was also confiscated has since been imprisoned and his former lawyer murdered. The claimant faces the enmity of powerful figures in government.
· His family suffered harm in the past. In 1996 during the war, a Taliban rocket attack killed 2 brothers and a sister. Also, his injured daughter’s memory is impaired.
· He is opposed to corruption in Afghanistan, and may be targeted for that reason.
· There are rumours in Pakistan that he has converted to Christianity and so he faces death for apostasy.
· Submissions argue the claimant would be persecuted by the Taliban and other extremist groups in Afghanistan for a number of Convention reasons: because of his race (Hazara), membership of a particular social group (Hazara, landowners), imputed political opinion (opposition to corruption in Afghanistan) and/or religion (Shia Islam).
· It is neither relevant nor reasonable for him to relocate within Afghanistan.
There is nothing in the IMR’s summaries of the applicant’s claims that reveals an awareness of the claim of economic discrimination amounting to persecution. In the absence of any mention of the claim of economic discrimination amounting to persecution in the IMR’s very detailed summary of the applicant’s claims, I do not accept that the IMR’s consideration of social discrimination, or other matters, implicitly dealt with the claim of economic discrimination amounting to persecution.
I acknowledge that there is a finding at paragraph 124 of the IMR’s statement of reasons to the effect that the applicant has “business skills which would enable him to seek meaningful employment in Kabul.” (emphasis added). However, the question was whether the applicant, for Convention reasons, faced a real chance that he would not be able to find adequate employment, or establish an adequate business, given his minority status, his mental illness, his various other attributes and the levels of unemployment and social dislocation in Kabul. This issue was squarely raised and it had to be squarely addressed. It was not. Ground 8 is made out.
Conclusion
As ground 8 of the applicant’s grounds has been made out, there will be a declaration that the IMR failed to afford the applicant procedural fairness by failing to consider the claim of economic discrimination amounting to persecution. The first respondent will be ordered to pay the applicant’s costs.
I certify that the preceding eight-seven (87) paragraphs are a true copy of the reasons for judgment of Riley FM
Associate:
Date: 4 October 2011
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