MZYOP v MINISTER FOR IMMIGRATION & ANOR
[2012] FMCA 151
•19 March 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZYOP v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 151 |
| MIGRATION – Review of Independent Merits Review – refusal of a protection visa –whether the Reviewer erred in its consideration of country information – no matter of principle – application dismissed. |
| Migration Act 1958 (Cth) |
| Khan v Minister for Immigration and Ethnic Affairs [1987] FCA 457; (1987) 14 ALD 291 Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24; 66 ALR 299; (1986) 60 ALJR 560; (1986) 10 ALN N109 Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51; (2010) 115 ALD 303 Minister for Immigration and Multicultural and Indigenous Affairs v VOAO & VOAP [2005] FCAFC 50 Minister for Immigration v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259; (1996) 136 ALR 481; (1996) 70 ALJR 568; (1996) 9 Leg Rep 2 |
| Applicant: | MZYOP |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | THE INDEPENDENT MERITS REVIEWER |
| File Number: | MLG 1091 of 2011 |
| Judgment of: | Riethmuller FM |
| Hearing date: | 17 November 2011 |
| Date of Last Submission: | 20 December 2011 |
| Delivered at: | Melbourne |
| Delivered on: | 19 March 2012 |
REPRESENTATION
| Counsel for the Applicant: | Mr Taylor of Counsel |
| Solicitors for the Applicant: | Victoria Legal Aid |
| Counsel for the First Respondent: | Mr Rebikoff of Counsel |
| Solicitors for the First Respondent: | Australian Government Solicitor |
| Counsel for the Second Respondent: | There being no appearance by or on behalf of the Second Respondent |
ORDERS
The application filed on 28 July 2011 be dismissed.
The applicant pay the first respondent’s costs fixed at $6,240.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 1091 of 2011
| MZYOP |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
And
| THE INDEPENDENT MERITS REVIEWER |
Second Respondent
REASONS FOR JUDGMENT
The applicant seeks judicial review of a recommendation made by the Reviewer to the Minister with respect to whether or not the applicant should be recognised as a person to whom Australia owes protection obligations under the Refugee Convention.
The applicant is a citizen of Afghanistan. He is a Shia Muslim of Hazara ethnicity. The applicant came to Australia on 9 April 2010 and sought recognition as a refugee on 17 July 2010. His initial application was refused and he sought a review on 31 August 2010. For the purpose of the review, the applicant had the assistance of a migration agent who made submissions. On 29 May 2011, the Reviewer found that the applicant did not meet the criteria for a protection visa and refused to make recommendation to the Minister. On 28 July 2011, the applicant filed an application for judicial review in the Federal Magistrates Court. An amended application was filed on 7 November 2011, following which and the hearing took place on 17 November 2011. Ultimately, the applicant’s submissions were categorised to the Reviewer as:
a)Fear of persecution by the Taliban as a result of his ethnicity and religion;
b)Fear of persecution as a result of a family land dispute; and
c)Fear of persecution by the Taliban as a result of him having travelled to a western country.
At the interview before the Reviewer, he also raised a fear of persecution by relatives or tribe members of a young Pashtun woman with whom he had a relationship in Pakistan.
He also raised with the Reviewer a concern that if he returned to Afghanistan, he may be perceived as being from Pakistan and persecuted for that reason.
In this case, the Reviewer found the applicant to be a “generally credible and truthful witness in relation to his account of his own personal experience” but went on to point out that (at paragraph [59]):
…It does not follow that his assertions about other matters of a general nature beyond his immediate experience should be uncritically accepted.
Ultimately, the Reviewer concluded that the applicant was not at risk of persecution as a result of his religion or ethnicity on the basis that Hazara or Shias are generally persecuted in Afghanistan (noting that the facts of particular cases may result in a different outcome due to an individual’s specific circumstances), that the land dispute was found to be an issue that was not covered by the Convention and in any event not a matter that would cause him risk of serious harm if he resided elsewhere than in his home district in Jaghori.
The Reviewer was not satisfied that people returning from western countries as failed asylum seekers are for that reason targeted or persecuted by the Taliban or others.
With respect to the concerns as to the tribe or family of the Pashtun woman, the Reviewer was not satisfied that this presented a real risk within Afghanistan and that in any event, this was not a claim that fell within one of the relevant reasons under the Convention, as it was in substance, the result of the family of the Pashtun woman seeking to redress what was perceived to be a dishonour of their family and as a result of the applicant having a relationship with the Pashtun woman following which she became pregnant.
The Reviewer also turned their mind to the potential of the applicant being perceived to be Pakistani and concluded that this may give rise to some practical difficulties, including some lack of acceptance, but concluded that these difficulties would not be sufficient to constitute persecution under the Convention.
As a result, the Reviewer did not recommend that the applicant’s claim be accepted.
In these proceedings, the applicant relies on three grounds in support of his application:
a)The second respondent failed to accord to the applicant procedural fairness, by failing to give ‘proper, genuine and realistic consideration’ to the applicant’s claims;
b)The second respondent erred in law by failing to take into account relevant considerations which he was obliged to take into account in consideration of the applicant’s claims; and
c)The decision of the second respondent was unreasonable, and that there was no evidence in support the finding of facts central to the conclusions drawn.
These grounds are conveniently dealt together as all of the grounds arise out of the same factual allegations.
In support of the first ground, the applicant relies upon the comments of Gummow J in Khan v Minister for Immigration and Ethnic Affairs [1987] FCA 457; (1987) 14 ALD 291, and the comments of the High Court in Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24; 66 ALR 299; (1986) 60 ALJR 560; (1986) 10 ALN N109.
At paragraph [63] to [80], the Reviewer discusses in some detail the country information and reasons for the findings with respect to the risk to the applicant of persecution as a result of his Hazara ethnicity and Shia religion. The Reviewer notes, after discussing various specific incidents in different country information, that:
[68] A report that one or more Hazaras has been killed does not of itself, without more, lead to an automatic inference that those individuals have been killed for a Convention reason, let alone that Hazaras generally are persecuted. Nor does insecurity and risk of harm in an insurgency situation either establish or preclude refugee status.
The key finding in this regard was in paragraph [69] where the Reviewer said:
[69] Although absence of evidence does not necessarily constitute evidence of absence, it is reasonable to draw an appropriate inference from the fact that authoritative independent country reports dealing with persecution in Afghanistan fail to specifically identify Hazaras and Shias in Afghanistan as groups generally subjected to persecution by reason of their ethnicity and religion, although they do note a degree of societal discrimination (UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Afghanistan, 17 December 2010; Amnesty International Report 2010, The State of the World’s Human Rights; U.S. Department of State, 2009 and 2010 Country Reports on Human Rights Practices: Afghanistan, 11 March 2010 and 8 April; and U.S. Department of State, International Religious Freedom Report 2010: Afghanistan, 17 November 2010). It is highly implausible that all three bodies, approaching their task no doubt from varying perspectives and utilising a range of sources, should all fail to note such persecution if it were as generally pervasive as claimed. (emphasis added)
The substance of the reasoning in paragraph [69] is that a survey of the various reports (country information) before the Reviewer showed no reports concluded that there was persecution of Hazaras or Shias in Afghanistan by reason of their ethnicity and religion and that in these circumstances, it was appropriate to draw the inference that persecution was not as pervasive as claimed.
I turn then to consider the issues raised with respect to each of the reports referred to by the Reviewer:
a)The UNHCR Eligibility Guidelines of 17 December 2010 report states (at page 29):
10. Members of (Minority) Ethnic Groups
It is widely documented that ethnic-based tension and violence have arisen at various points in the history of Afghanistan.[See, for example, Maley, William, On the Position of the Hazara Minority in Afghanistan, December 2010, copy on file with UNHCR. See also Maley, William, The Afghan Wars, 2002, New York; Palgrave Macmillan; Giustozzi, Antonio, Empires of Mud: Wars and Warlords of Afghanistan, 2009, Hurst/Columbia University Press; and Giustozzi, Antonio, Decoding the New Taliban: Insights from the Afghan Field, (ed.). 2009, Hurst/Columbia University Press.] Since the fall of the Taliban regime in late 2001, however, ethnically-motivated tension and violence have diminished markedly in comparison to earlier periods. Notwithstanding the foregoing and despite constitutional guarantees of “equality among all ethnic groups and tribes”,[Article 6 of the Constitution of Afghanistan, 3 January 2004, certain concerns remain.[According to the 2010 “people under threat” index, Afghanistan is listed as the fourth most dangerous country for the following ethnic groups in the world: Hazara, Pashtuns, Tajiks, Uzbeks, Turkmen and Baluchis; see Minority Rights Groups International, State of the World’s Minorities and Indigenous Peoples 2010, 1 July 2010, These include, inter alia, ethnic discrimination and clashes, particularly in relation to land use/ownership rights.[See, for example, UN Committee on Economic, Social and Cultural Rights (CESCR), Consideration of reports submitted by States parties under articles 16 and 17 of the Covenant: concluding observations of the Committee on Economic, Social and Cultural Rights: Afghanistan, E/C.12/AFG/CO/2-4, 7 June 2010, During 2009, the authorities estimated approximately 9,900 affected by tribal, ethnic, or land disputes; see US Department of State, 2009 Country Reports on Human Rights Practices - Afghanistan, 11 March 2010, page 31 to 32, the report states:
It has also been reported that in the Kajran District of Daykundi province, armed anti-Government groups engage in propaganda against Hazaras and Shia Muslims allegedly on the ground of religious differences.
At page 32, the report goes on to state:
Although available evidence suggests that some members of (minority) ethnic groups, including Hazaras, may engage in irregular migration for social, economic and historical reasons, this does not exclude that others are forced to move for protection-related reasons. UNHCR therefore considers that members of ethnic groups, including, but not limited to those affected by ethnic violence or land use and ownership disputes, particularly in areas where they do not constitute an ethnic majority, may be at risk on account of their ethnicity/race and/or (imputed) political opinion, depending on the individual circumstances of the case. However, the mere fact that a person belongs to an ethnic group constituting a minority in a certain area does not automatically trigger concerns related to risks on the ground of ethnicity alone. Other factors including, inter alia, the relative social, political, economic and military power of the person and/or his and her ethnic group in the area where fear is alleged may be relevant. Consideration should also be given to whether the person exhibits other risk factors outlined in these Guidelines, which may exacerbate the risk of persecution. In the ever-evolving context of Afghanistan, the potential for increased levels of ethnic-based violence will need to be borne in mind.
b)No complaint was made with respect to the reference to the Amnesty International report of 2010, nor the US Department of State report, nor the first Country Report on Human Rights Practices: Afghanistan.
c)With respect to the Country Reports on Human Rights Practices: Afghanistan of 8 April 2011, reference was made to the passage appearing at page 29 where it was stated:
Discrimination against Hazaras and other Shias continued in certain areas, in the form of extortion of money through illegal taxation, forced recruitment and forced labor, physical abuse, and detention.
d)Complaints are not made with respect to the US Department of State reports.
Additional information was before the Reviewer, in particular a report by Professor William Maley, which was generally favourable to the position of the applicant. The applicant also provided press articles from Reuters, The Australian, Sydney Morning Herald and The New York Times supporting the proposition that Hazaras generally are at risk.
The specific information from Professor Maley and an article in The New York Times is referred to by the Reviewer in earlier paragraphs. The Reviewer said of Professor Maley’s evidence (at paragraph [74]):
[74] …One might as well as dismiss Professor Maley as an “independent observer” on the basis of his Vice-Presidency of refugee advocacy and services umbrella organisation, the Refugee Council of Australia (RCOA).
Whilst the Reviewer was alive to the proposition that a person’s individual circumstances as an Hazara Shia could be a basis for finding of risk persecution based upon ethnicity or religion, the Reviewer did not accept the proposition that Hazaras and Shias faced persecution generally, saying (at paragraph [75]):
[75] The reviewer finds that the claimant does not face persecution simply as an Hazara and a Shia on the basis of the proposition that Hazara and Shias are generally persecuted in Afghanistan.
The foundation for the Reviewer’s conclusions lie in paragraph [69] which is a finding based upon the evidence of the various reports referred to in that paragraph.
The applicant argues that passages of the reports are not consistent with the Reviewer’s conclusions. The applicant points out that in two of the reports referred to, there is information of, at the very least, discrimination. The primary complaint relates to the contents of the UNHCR report.
Ultimately, however, the views of the Reviewer stated at paragraph [75] and [78] (as quoted above) are in accord with the conclusions of the relevant section of the UNHCR report and not inconsistent with the Department of State report.
It is always difficult in cases of this type to distinguish between a review of the findings of fact and an error of law, when the argument focuses upon whether or not there was an evidentiary foundation for the conclusions. It appears to me that the conclusions in this case are sufficiently similar to those in the reports. The Reviewer points out that the claim by the applicant was on the basis simply of his cultural and religious background, not with associated facts or events, and in this regard makes reference to numerous passages in the court book (see court book at pages 57 to 58, 100 to 103, 141, 143, 149, 156 and 167).
More importantly, as was recounted at paragraph [41] of the Reviewer’s report, the Reviewer had regard to the fact that the applicant took issue with the various reports, saying:
…The claimant commented that reports tell one thing but people say something different. Hazaras and Shias are targeted by the Taliban. If he returns to Afghanistan after a year in Australia the Taliban will known and he will be killed on arrival. Asked about his basis for this assertion, the claimant then said that even if he escapes from the airport he cannot reach the city safely. (emphasis added)
The case in this regard, as put by the applicant, was squarely rejected in paragraph [75] of the decision:
[75] The reviewer finds that the claimant does not face persecution simply as an Hazara and a Shia on the basis of the proposition that Hazara and Shias are generally persecuted in Afghanistan.
It also appears clear that Professor Maley’s work was specifically considered by the Reviewer, as it is listed in the material that the Reviewer consulted at paragraph [56] of the decision. The need for a case by case analysis was identified at paragraph [65] of the decision, where the Reviewer also goes on to critically review the weight that can be placed upon Professor Maley’s material. Similar discussions occur at paragraph [74] of the decision. Those two paragraphs provide:
[65] In particular, as detailed in the February 2010 DFAT report, although UNHCR in Afghanistan noted that case-by-case analysis was needed, it said there was no evidence of a campaign by the insurgency to target Hazaras. Although Professor Maley has commented that the ability of DFAT officers in Afghanistan to conduct field research of their own is extremely limited given the tight security constraints under which they operate, and that this applies also to a number of the organisational agencies such as UNHCR, there is no evidence that academic observers have had any better direct access in recent times.
[74] The post-interview submission by the claimant’s agent appears to impugn the opinions of Professor Saikal on the basis of his ethnicity, religion and imputed political opinion. The reviewer hesitates to reject expert testimony on the basis of ethnicity or religion when no specific bias or inaccuracy has been asserted or demonstrated (while noting that some of the more colourful reporting about Afghanistan comes from the various Hazara websites). As for imputed political opinion, the reviewer notes that the overall tenor of Professor Saikal’s article is very far from uncritical of the Karzai Government, and nor does it suggest in any way that Afghanistan is safe. One might as well dismiss Professor Maley as an “independent observer” on the basis of his Vice-Presidence of refugee advocacy and services umbrella organisation, the Refugee Council of Australia (RCOCA).
Reference was made to the decision of the Full Court in Minister for Immigration and Multicultural and Indigenous Affairs v VOAO & VOAP [2005] FCAFC 50. In that case, the Tribunal member (the RRT) stated that:
The Tribunal notes the country information above and remarks on the absence of any mention of either an event or an attitude that would support the applicant’s claim that he would be persecuted … (see paragraph [9])
In the country information in Minister for Immigration and Multicultural and Indigenous Affairs v VOAO & VOAP [2005] FCAFC 50 there was a statement recounting a call for violence against the religious group from which the applicant was a part. The Full Court affirmed the decision of the Federal Magistrate on the basis that the Tribunal had failed to take account of the relevant material.
The significance of the decision in Minister for Immigration and Multicultural and Indigenous Affairs v VOAO & VOAP [2005] FCAFC 50 is that the Tribunal in that case made a finding that there was an “absence of any mention” demonstrating that the Tribunal had failed to take account of a relevant part of the evidence.
In this case, it appears that the Tribunal is referring to the conclusions in the reports, not to whether or not the reports make any mention of the matters. In this respect, the Tribunal’s findings appear to be in accord with the evidence.
Complaints on the basis that the claim was based upon the applicant being an Hazara and a Shia rather than dealing with these claims individually and in combination appears to me to be a far too technical reading of the case as put and the Reviewer’s reasons. One must bear in mind the comments made in Minister for Immigration v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259; (1996) 136 ALR 481; (1996) 70 ALJR 568; (1996) 9 Leg Rep 2; (1996) 41 ALD 1:
[272] 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.
The case was clearly put on the basis that the applicant was an Hazara and Shia and that there were general safety concerns and a number of specific incidents. The specific incidents were each dealt with and the general concerns were rejected. There was nothing in the material that could indicate that were the applicant not an Hazara but still a Shia, or alternatively an Hazara but not a Shia, that the outcome would have been in any way different, or indeed the case any way different.
Whilst not every item of evidence before the Reviewer was referred to in the decision, that is not unusual. A decision maker is expected to set out the reasons upon which the ultimate outcome is based, not recount by way of transcription or summary everything that has gone on before the decision maker. Omissions of significant issues or material may lead to the inference of error on behalf of a decision maker, however, it is not sufficient to point to any minor omission from reasons in order to establish error, nor does this establish that the decision maker did not give the matter proper, genuine and realistic consideration.
As the Full Court said in Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51; (2010) 115 ALD 303:
[46] The Full Court has held that a failure by the Tribunal to give "proper, genuine and realistic consideration" to the merits of an application for a protection visa does not give rise to an available ground of review under Part 8 of the Migration Act: Minister for Immigration and Multicultural Affairs v Anthonypillai [2001] FCA 274; (2001) 106 FCR 426. The NSW Court of Appeal, particularly Basten JA, has criticised the use of the formulation to permit judicial review for a failure to take into account a relevant consideration where a decision-maker purports to take the matter into account. See, for example, Kindimindi Investments Pty Ltd v Lane Cove Council [2006] NSWCA 23; (2006) 143 LGREA 277 at [74]-[75] and Belmorgan Property Development Pty Ltd v GPT Re Ltd [2007] NSWCA 171; (2007) 153 LGERA 450 at [76]. See also Bruce v Cole (1998) 45 NSWLR 163 at 186E per Spigelman CJ and Anderson v Director General of the Department of Environment & Climate Change & Anor [2008] NSWCA 337; (2008) 251 ALR 633 at [58].
[47] Counsel for the first respondent shied away from embracing the "proper, genuine and realistic" formulation. Rather, he relied on some remarks of Tobias JA (with whom Spigelman CJ and Macfarlan JA agreed) in Anderson (above). There, after criticising the use of the formulation to justify judicial review for failure to take into account a relevant consideration – which his Honour described as ‘fraught with danger’ (the danger being the impermissible slide into merits review) – his Honour said:
Of course, the relevant matter must be more than adverted to or given mere lip service. Nor would it be sufficient to advert to the matter and then discard it as irrelevant: Elias v Federal Commissioner of Taxation [2002] FCA 845; (2002) 50 ATR 253 at 265 [62] per Hely J. But whether or not it can be judged that a matter has been considered is essentially an evaluative process based exclusively on what the decision-maker has said or written.
[48] I acknowledge there is a distinction between referring to something and taking it into account. However, there is no justification for concluding that the baptismal "certificate" was merely adverted to and then discarded as irrelevant. Similarly, it would be wrong to characterise the Tribunal’s reason for according insufficient weight to the baptismal certificate as "bootstrapping". The Tribunal did not rely on its conclusion that the first respondent was not a Christian to dismiss evidence that he had been baptised as a Christian. It pointed out that the evidence about his baptism was all over the place. It pointed to evidence inconsistent with the statement in the certificate that he had been baptised. There is no reason to suppose that it did otherwise than what it said it did, namely accord the document some, but insufficient, weight to overcome its concerns with the first respondent’s unsatisfactory oral evidence. It is true that a genuine certificate attesting to a fact would generally be decisive proof of that fact. However, the Tribunal made no finding about the authenticity of the certificate. On the contrary, it referred to it as an alleged certificate. Counsel for the first respondent accepted that the Tribunal could legitimately conclude that his client’s story was so implausible or so full of problems that it could not be satisfied of the authenticity of the baptismal certificate and for that reason could not give it sufficient weight. In my view, there is no other way to read the Tribunal’s decision. Whilst it might have been preferable that the Tribunal made this clear, such a deficiency in the expression of its reasons does not constitute jurisdictional error: Re Minister for Immigration and Multicultural Affairs: Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407.
It was also put that the Reviewer could have undertaken further inquiries to ascertain the state of affairs in Pakistan before making the decision. The law on this point is quite clear: an administrative decision maker does not have an obligation to seek out further evidence and make further inquiries save in the relatively rare cases where an inquiry is a simple one to make and likely to be significant to the outcome, such as obtaining a document from another file within the Department.
At the hearing the applicant was given leave to file and serve further submissions, supported by a transcript of the hearing in order to put a claim that the Reviewer failed to deal with an integer, namely a claim of fear in Ghazni. The further submissions in writing did not pursue this claim.
In the circumstances I therefore dismiss the application.
The parties have agreed that the costs ought to follow the event as assessed, on the Federal Magistrates Court’s scale. I therefore order that the applicant pay the first respondent’s costs fixed at $6,240.
I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Riethmuller FM
Date: 15 March 2012
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