MZYOA v Minister for Immigration
[2012] FMCA 45
•30 January 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZYOA v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 45 |
| MIGRATION – Application for judicial review – decision of Independent Merits Reviewer alleged to have failed to address one facet of applicant’s case – alternative finding that State protection available – applicant’s submissions not made out – decision not affected by jurisdictional error. |
| Migration Act 1958 (Cth) |
| Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 |
| Applicant: | MZYOA |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MS J BARTLETT IN HER CAPACITY AS INDEPENDENT MERITS REVIEWER |
| File Number: | MLG 1062 of 2011 |
| Judgment of: | Burchardt FM |
| Hearing date: | 24 November 2011 |
| Date of Last Submission: | 24 November 2011 |
| Delivered at: | Melbourne |
| Delivered on: | 30 January 2012 |
REPRESENTATION
| Counsel for the Applicant: | Mr G. Gilbert |
| Solicitors for the Applicant: | Victoria Legal Aid |
| Counsel for the First Respondent: | Mr W. Mosley |
| Solicitors for the First Respondent: | 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 1062 of 2011
| MZYOA |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MS J BARTLETT IN HER CAPACITY AS INDEPENDENT MERITS REVIEWER |
Second Respondent
REASONS FOR JUDGMENT
The applicant seeks judicial review of a decision of an Independent Merits Reviewer (“Reviewer”) dated 17 June 2011. He is a Hazara of Shia faith from Afghanistan, and says that the Reviewer fell into error in two respects. The first alleged error is a failure to address the case the applicant made as to his risk of persecution on the ground that he was a person returning to Afghanistan from another country.
The second area of controversy relates to the first respondent’s contention that even if the Reviewer did not address the applicant’s claim of possible persecution on the basis of the social group of Afghans who returned to Afghanistan after living abroad, the decision of the Reviewer is sustainable on the basis of a finding that in any event state protection is available to the applicant.
For the reasons that follow, I think that the Reviewer did not fail to address the case put by the applicant as to his fear of harm on the basis of membership of a social group, and I further find that the Reviewer’s findings as to state protection are indeed sustainable.
It follows that the application must be dismissed.
Relevant background facts
These background facts are not controversial and what follows is taken from the submissions of the parties and the materials in the Court Book (“CB”).
The applicant is a national of Afghanistan and is a Hazara by ethnicity of Shia religion. He came to Christmas Island by boat from Indonesia without a visa to enter and remain in Australia.
The applicant was born in Wardak Province, Afghanistan, but spent 22 years in Iran, principally to avoid the then compulsory military service. He met his wife in Iran (although it is not clear whether she is Iranian or Afghan by nationality) and had six children by her, all of whom are presently in Iran. In 2008, he returned to Kabul and lived there until he fled to Australia.
Before leaving Kabul, the applicant worked as a welder (as the Reviewer accepted) and a cousin who worked with him was killed. There was an issue before the Reviewer as to who killed the cousin and why.
Following his arrival in Australia, the applicant was interviewed by an officer of the Department, was the subject of an RSA assessment, and then the review which has given rise to this application.
The case put by the applicant
Mr Gilbert of counsel, who appeared for the applicant, correctly asserted that the applicant’s case involved what was described as a short point. It was submitted that the Reviewer simply failed to address a part of the case put on behalf of the applicant, and that that failure gave rise to jurisdictional error. Both sides proceeded on the footing, I think correctly, that failure to address a case put by an applicant may give rise to jurisdictional error.
The claim that was said not to have been addressed was a fear of persecution by reason of membership of a particular social group, namely “Afghans who have returned after living abroad.” That claim has its origin in a submission from the applicant’s advisor dated 22 March 2011 (CB 82 at paragraph 1(b)iv)) which had two other sub-parts, namely “Afghans who have returned to Afghanistan after living in a Western country” and/or “Afghans who have sought asylum in a Western country.” It was submitted that the latter two facets of this claim were addressed but the first was not.
The first respondent’s submission, putting the matter shortly, was that the claim was indeed addressed, as evidenced by the decision of the Reviewer, and reference was made to the decision of the High Court in Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 (“Wu Shan Liang”) in this regard. Furthermore, and in any event, the first respondent submitted that the state protection issue saved the decision.
In order to examine the force of these competing submissions, it is necessary to look at what the applicant said, either himself or through his advisers in support of his claim.
The applicant’s claims
In the entry interview form, which runs from CB 1-21, the applicant said at CB 9:
“Went to Iran in 1986 till 2008 to avoid compulsory army service in Afghanistan.”
At CB 11 he said:
“It is not safe for Hazaras because of Taliban, roads are not safe. It is not safe for me – if I get killed – what would happend to them? Taliban killed my cousin, Hajie Amir. Taliban is our enemy.” (sic)
At CB 19 the applicant said:
“It is not safe in the country, I can’t go back. No one threatened me yet, but my cousin is dead, and if that happened to me – no one would look after my daughters. It is so hard for ladies to live in Afghanistan. There are many difficulties in Afghanistan and I don’t want to go back there. …”
In a Statutory Declaration, set out CB 41-43, completed on 11 April 2010, the applicant relevantly said the following:
“(2) My main reasons for seeking the protection of the Australian Government are based on fear of returning to Afghanistan because I will face persecution because of my Shi’a religion and Hazara ethnicity. Also, the fact that I am a Hazara male puts me in danger of being arrested by the Taliban. I live in fear of attack and possible death from the Taliban if forcibly returned.
…
(7) The Afghanistan Government cannot help us. They cannot even protect themselves, so how can they protect us? The Taliban does whatever it wants to do, and we have to try to find a way to survive. I am always scared for the safety of my wife and my children.
…
(13) I am also worried that if I am forced to go back to Afghanistan the Taliban will think that I have said bad things about them to the Australian authorities. I will be in lots of trouble for this and there is no Government authorities to protect me in the area in which I live. The Taliban will know that I have been away, because they have spies and sympathisers who will tell them that I have been gone. The Taliban has spies in my area, west Kabul, and I know this because some people have been stopped by the Taliban on their way to Ghazni, and the Taliban knew exactly who they were and all their details. They could only have known this if someone in the area had told them. I am worried that the Taliban will kill me because I have applied for asylum in Australia.
(14) I know that the Taliban have killed people who made unsuccessful protection visa applications in Australia and were sent back to Afghanistan. They had stayed in Nauru before their applications were refused. When they got back to Afghanistan, they were killed.”
Various other claims were made in the RSA interview process and I note that the RSA record at CB 65 and following is incomplete. It appears to have only the odd-numbered pages. Neither counsel alerted the Court to this deficiency during the hearing and I take it that for these purposes nothing turns on that omission.
At CB 81, the applicant’s advisers set out his claims. The primary matter advanced was the applicant’s Hazara ethnicity and Shia religion. However, at paragraph 1(b)iv the following was articulated:
“His membership of the particular social group(s) ‘Afghans who have returned to Afghanistan after living abroad’, Afghans who have returned to Afghanistan after living in a Western country’ and/or ‘Afghans who have sought asylum in a Western country;”
The claims made on the applicant’s behalf also included, at CB 82, claims as to the security position in Afghanistan generally and the lack of state protection.
Most of the lengthy submission filed on behalf of the applicant dealt with his Hazara ethnicity and Shia religion and the security situation in the country generally which interrelated, of course, with these two personal qualities.
At CB 107, a specific assertion was made that the applicant:
“... will also face harm on account of the fact that he would be seen as pro-West and pro-Karzai government and that this risk is attributable to the fact that he is of Hazara ethnicity and Shia faith, has spent many years outside Afghanistan and will be a returnee from a Western country.”
At CB 109, this matter is further expanded as follows:
“In our submission, the above information, strongly indicates that the applicant will be at risk as a returnee and will be imputed with a political opinion in favour of the West and the Karzai government and in opposition to the Taliban and the Kuchi.”
It will be noted that those submissions concentrated exclusively on the risk that the applicant would face as a result of a perception that he was pro western and/or that he had returned from a western country. The reference to his spending many years outside Afghanistan was only in passing.
At CB 137, the applicant’s advisers raised the only specific matter that I can see as having been raised involving a particular ground that is said to have been overlooked. This related to persons who had returned from Iran from Pakistan. The adviser’s submission relevantly reads:
“… The article further notes that among the reasons for this are security and challenges in returnees being able to reconnect back into society. We note that this is entirely consistent with the applicant’s own history of returning to Afghanistan from Iran, only to be forced to flee again. In particular, we refer to the following passage;
“The experts believe that the cultural differences of the refugees who have returned to Afghanistan to that of the people in their native areas will cause these people not to be able to have an active role in the society and find a suitable place for themselves in social relationships in Afghanistan.
Hamidullah Farooqi, a professor at the Kabul University says that the low capacity to bond in the society gives the returnees the feeling that they cannot be connected in their native societies. Therefore they prefer to migrate to the countries in which they have a lot in common with the culture and mind-set of those people. He says, “I can give you a clear example. Those who have returned from Iran and have a particular accent, when they enter the Afghan society, they face inappropriate and degrading conduct.”
The applicant’s submission continued:
“In our submission, the above comments support Mr (name of applicant) claims that he will face harm on account of his having lived abroad, both in Iran as well as in a western country.”
It should be noted, as counsel for the first respondent submitted, that the applicant had never himself articulated the claims identified by Professor Farooqi. This was a matter raised wholly by his advisers. What the applicant had raised was his concerns as a returnee from a western country who had sought asylum.
The Reviewer’s decision
The bulk of the interview between the Reviewer and the applicant and the bulk of the Reviewer’s decision relate, not surprisingly, to the claims as to risk of persecution on the basis of the applicant’s Hazara ethnicity and Shia religion. No complaint is made about any of those aspects of the decision. The Reviewer accepted that the applicant had lived for an extensive period of time in Iran. At paragraph 35
(CB 157), under the heading “Returnee / Westernised / Asylum Seeker”, the Reviewer accepted that the applicant had lived in Afghanistan for a total of approximately 18 years, from his birth in 1968 to 1985 and from 2008 to 2010, but that he had lived in Iran between 1986 and 2008.
At CB 159, in the passages in its judgment under the heading “Findings and Reasons”, and under a sub-heading “Political Opinion and Returnees / Westernised / Asylum Seekers, the Reviewer said as follows at paragraphs 40-42:
“40. It is accepted that neither (the applicant) nor his family have ever been involved in or associated with any political group or organisation, that he has never been arrested or detained by police or security organisations, and has lived in Afghanistan for a total of approximately eighteen years (1968 to 1985 and 2008 to 2010). It is also accepted that Mr (applicant) resided in Iran for approximately 22 years (1986 to 2008). The reviewer finds that as (applicant) and his family members have not publicly or privately expressed any political opinion, that he has lived in a neighbouring Muslim country to avoid compulsory army service and has remained in confidential lawful detention for fourteen months in Australia after applying for asylum, Mr (applicant) does not have a political opinion (either pro Government or anti Taliban) nor does he have any personal attributes that would give him a profile of being westernised, such as a westernised accent or employment with a western company. As it has been accepted that Mr (applicant) arrived in Australia in February 2010 where he has since remained in lawful immigration detention and that his asylum application details have been managed throughout his time in Australia on a confidential basis, the reviewer does not accept that the reason for his most recent absence from Afghanistan he would be known to others upon his return, such that he would be imputed as having any political opinion.
41. Information at preceding subparagraphs 33(v) to (ix) is that Afghan returnees from Iran in 2008 and 2009 numbered 3,600 and 5,000 respectively, but 935,000 Afghanis continue to reside in Iran, and that of the proportionally low number of returnees (as compared with non returnee civilians) who are subject to targeted (that is, not indiscriminate) violence, the motivations of the perpetrators are for reasons of either the victims’ perceived wealth (and thus economic benefit to the perpetrator) or suspected association with Government or foreign interests. As it has been found that Mr (applicant) does not have a political opinion (either pro Government or anti Taliban), that he does not have any personal attributes that would give him a profile of being westernised, and that the reason for his most recent absence from Afghanistan would not be known to others upon his return, the reviewer does not accept that his being a failed asylum seeker returned from Australia provides a basis upon which he would be imputed as having a political opinion or membership of any such particular social group whatsoever. Nor do Mr (applicant’s) circumstances enable the Taliban or other non State actors to form any thoughts about what he may or may not have said to others during his absence from Afghanistan, and thus the reviewer does not accept he is at any risk of harm related to Taliban and / or spies. As the information at preceding subparagraphs 33(vii) to (x) is accepted, the reviewer finds there is nothing more than a remote or fanciful chance Mr (applicant) would be harmed for reasons of an imputed political opinion, or due to the fact of his return from Australia as a failed asylum seeker.
42. For the above reasons the reviewer finds there is no objective basis for Mr (applicant’s) fear of harm in the reasonably foreseeable future in Afghanistan because of his being a returnee and / or failed asylum seeker. As the reviewer also finds his personal circumstances are such that he will not be imputed as having a political opinion, and / or membership of any postulated particular social groups returnees / westernised / asylum seekers (howsoever described), it follows the harm he fears is not for a Refugee Convention reason.”
Counsel for the applicant submitted that the use of the phrase “for the above reasons” meant that the decision on the three sub-facets of the returnee argument must necessarily be limited only to the latter two and not include the generalised claim of suffering harm as a returnee from a foreign country.
In this particular instance, I think that the reference by counsel for the first respondent to the observations of the High Court in Wu Shan Liang, that the decisions of a Reviewer should not be looked at with an eye overly attuned to the perception of error has force.
What the Reviewer actually did was to deal in terms with the argument that the applicant himself had advanced; namely, that he would face risk as a returnee or failed asylum seeker. Those two matters were intimately interrelated and encompassed the argument about being returned from a western country.
The Reviewer did, however, say:
“As the reviewer also finds his personal circumstances are such that he will not be imputed as having a political opinion, and / or membership of any postulated particular social groups returnees / westernised / asylum seekers … (emphasis added).”
It is clear that the Reviewer was adding something to that first finding.
The Reviewer could have made the matter clearer, but nonetheless the reasons for the decision need to be looked at in context.
The most that was ever said in terms about the applicant’s risks of harm as a result of returning from Iran were the remarks about degrading conduct referred to in the submissions from the applicant’s adviser, which appear to have been received after close of business hours on the last day postulated for their arrival. I agree with counsel for the applicant that in the ultimate, nothing turns on this matter as the Reviewer plainly took those materials into account.
While the Reviewer dealt with the matter in a very passing way, it is also fair to say that when looked at as part of the totality of the submissions advanced on behalf of the applicant, this particular sub-facet of the case was itself also only the most passing moment.
I do not think that the Reviewer failed to address the applicant’s point and therefore did not fall into jurisdictional error.
Security position
Submissions by counsel for the applicant appeared to me to concede that any question of examination of the decision of the Reviewer as to the state protection issue was merits review. I think that submission was correct. The Reviewer did find that (paragraph 43, CB 160):
“… The reviewer also finds that in the remote possibility Mr (applicant) is threatened by Taliban because of his wish to send his daughters to school, or he is subject to harm by other non-State agents for any reason, State protection of the kind discussed in MIMA v Respondents S152/2003 (2004) 222 CLR is available and would not be withheld from him.”
At CB 161, the Reviewer went on:
“… there is an appropriate level State protection available to Mr (applicant) in Kabul where he has resided for seventeen years, it follows that there is not a real chance he will be persecuted in the Refugee Convention sense in the reasonably foreseeable future.”
Minds might differ as to whether this finding was correct, but on any view there was material before the Reviewer which would have sustained such conclusion and accordingly, were it necessary to do so, I would find that the Reviewer’s decision would be sustainable on this alternative ground.
As I indicated earlier, despite the skill with which the applicant’s submissions were advanced, his case is not made out and the application must be dismissed.
I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of Burchardt FM
Date: 30 January 2012
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