MZYOS v Minister for Immigration - [2012] FMCA 422

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MZYOS v MINISTER FOR IMMIGRATION & ANOR

[2012] FMCA 422

MIGRATION – Offshore entry person – alleged failure to give opportunity to comment on adverse information – alleged failure to consider up-to-date information – alleged failure to consider an integer of the applicant’s claim – no jurisdictional error found – application for review dismissed.

Browne v Dunn (1893) 6 R 67
Kioa v West (1985) 159 CLR 550
Minster for Immigration and Citizenship v SZQHH [2012] FCAFC 45
MIMA v Hija Ibrahim (2000) 204 CLR 1
MIMA v Khawar and Ors (2002) 210 CLR 1
MUIN v Refugee Review Tribunal (2002) 190 ALR 601
NAAX v Minister of Immigration and Multicultural Affairs (2002) 119 FCR 312
Re Minister for Immigration and Multicultural Affairs; ex parte MIAH (2001) 206 CLR 57
SZQEK v Minister for Immigration and Citizenship [2011] FMCA 628
SZQDZ v MIAC [2012] FCA FC 26
SZQJP v Minister for Immigration and Citizenship [2011] FMCA 759

Applicant:

MZYOS

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

STEVE KARAS IN HIS AS CAPACITY INDEPENDENT MERITS REVIEWER

File Number:

MLG 1094 of 2011

Judgment of:

O’Dwyer FM

Hearing dates:

18 November 2011 and 23 February 2012

Date of Last Submission:

23 February 2012

Delivered at:

Melbourne

Delivered on:

23 May 2012

REPRESENTATION

Counsel for the Applicant:

Ms Burt

Solicitors for the Applicant:

Victoria Legal Aid

Counsel for the First Respondent:

Mr Horan

Solicitors for the First Respondent:

Sparke Helmore

THE COURT ORDERS THAT:

By consent the Applicant be granted an extension of time to

28 July 2011 to issue the application.
The application filed on 28 July 2011, as amended, is dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT MELBOURNE

MLG 1094 of 2011

MZYOS

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

STEVE KARAS IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER

Second Respondent

REASONS FOR JUDGMENT

Introduction

By his amended application, the Applicant seeks to review the recommendation made by the Independent Merits Reviewer

(the Reviewer) that the Applicant not be recognised as a person to whom Australia has protection obligations. By so recommending, the Reviewer affirmed an earlier assessment made by the

First Respondent’s delegate, on 26 June 2010, that the Applicant not be recognised as a refugee.
This matter, unfortunately, has a long history in this Court, whereby the first hearing took place on 18 November 2011, but due to an objection taken by the First Respondent (the Respondent) to the late filing of affidavit material after the conclusion of the hearing, the matter had to be re-agitated by reopening the hearing to admit the later affidavit. That further hearing took place on 23 February 2012, and last submissions were made on that date. At that time the Applicant was held in detention. The Court was informed, however, that not long after the last hearing, the Applicant was released from detention on a bridging visa into the community.
At the time of the lodgement of his amended application, the Applicant sought an extension of time to do so. That part of his application was at first resisted by the Respondent, until the determination by the

Full Federal Court in SZQDZ v MIAC[1]. In light of that determination, the Respondent has informed the Court that he now consents to the necessary extension of time, and an order will be made to that effect.
[1] [2012] FCAFC 26

Background

The Applicant is an Afghani citizen of Hazara ethnicity and is a Shia Muslim. He is approximately 44 years of age. He gives a history of moving to Pakistan from Afghanistan in 1984, when he was 16 years of age, as a consequence of his brother and uncle having been killed in a dispute with Kuchi/Pashtuns over land. Having moved to Pakistan with his family, he remained there illegally until September 2009.
The Applicant arrived in Australia as an offshore entry person on

13 March 2010, and made a request for a Refugee Status Assessment (RSA) on 30 May 2010.
The Applicant claimed refugee status on the basis of:
a)his race as an Hazara;
b)his religion;
c)that because of both of the above characteristics, he would suffer a real prospect of serious harm by the Taliban, or Pashtuns, should he return to Afghanistan; and
d)his return from a Western country, should he not be granted refugee status, as a failed applicant for refugee status.

The Reviewer’s Reasons

The Reviewer accepted that the Applicant had left Afghanistan in 1984 and moved to Pakistan with his family, where he had remained illegally until September 2009 (25 years). Because the Applicant had no right of return to Pakistan, the Reviewer assessed his claims against Afghanistan as his country of nationality.
The Reviewer also accepted that, shortly prior to leaving Afghanistan, the Applicant’s uncle and brother had been killed in a dispute with Kuchi/Pashtuns over their land. The Reviewer also appeared to accept that the Applicant’s son-in-law had been killed in Afghanistan in early 2009.
The Reviewer noted that the Applicant had not had any personal involvement or incidents with Kuchi or Pashtuns, or the Taliban, since he left Afghanistan at 16 years of age. The Reviewer did not accept that the Taliban or Pashtuns were personally interested in the Applicant, given the time since he last lived in Afghanistan, and the changed circumstances from when the Kuchi seized his family’s land many years ago.
The Reviewer found that any difficulties that the Applicant might encounter on his return to Afghanistan would either not amount to persecution, or would not be for a Convention reason.
The Reviewer concluded:[2]
[2] [62] of Reviewer’s Statement of Reasons dated 2 March 2011
Overall, based on all the information available, including the available evidence about his family experiences in Afghanistan and Pakistan and the fact that he left Afghanistan all those years ago and later that he should leave Pakistan to seek protection in Australia, I am not satisfied that the claimant has a well founded fear of persecution for reason of his race, as a Hazara, and his religion, as a Shia Muslim, should he return to Afghanistan now or in the reasonably foreseeable future.
The Reviewer further found that:[3]
[3] ibid
Indeed, given the circumstances of this case, the claimant may have been affected in part by land disputes so many years ago or by the incidents of an armed insurgency in terms of general insecurity and hardship, but this does not amount separately or cumulatively to a well founded fear of persecution for a Convention reason. It is accepted that the Convention definition does not generally encompass those fleeing generalised violence, internal turmoil or civil war. (See MIMA v Hija Ibrahim (2000) 204 CLR 1 at 141).
Finally, the Reviewer found that there was no credible evidence that persons who returned to Afghanistan from Western countries as failed asylum seekers were, for that reason, targeted and persecuted by the Taliban, or others.

The Amended Application

The Applicant alleges five grounds upon which he prosecutes his review.

Ground 1

The first ground alleges that the Reviewer’s recommendation is affected by jurisdictional error in that the Reviewer did not afford procedural fairness to the Applicant by not bringing to the attention of the Applicant, or allow the Applicant an opportunity to comment on, information from which the Reviewer drew conclusions adverse to the Applicant’s claim.

Ground 2

The second ground relied on is in addition to, or in the alternative to the first, in that it is alleged the Reviewer’s recommendation is affected by jurisdictional error in that the Reviewer failed to consider the recent country information provided by the Applicant’s advisor in the second submissions lodged, and/or the Reviewer regarded a proposition as having “no evidence”, when there was evidence before the Reviewer.

Ground 3

This ground alleges the Reviewer’s recommendation is affected by jurisdictional error on the further basis that he failed to consider an aspect of the Applicant’s claim; namely, that as an Hazara person who had been involved in a land use or ownership dispute, the Applicant would be at risk of persecution.

Ground 4

Again, this ground alleges the Reviewer’s recommendation is affected by jurisdictional error in that the Reviewer took into account an irrelevant consideration, and/or acted illogically, and/or unreasonably, when he regarded the Applicant’s time in Pakistan, and later move to Australia, as relevant to assessing his refugee claim.

Ground 5

This ground alleges the recommendation was affected by jurisdictional error in that the Reviewer erred at law by failing to ask himself whether State protection may be denied to the Applicant because of his ethnicity/religion.

The Applicant’s application to reopen the proceeding

The Applicant filed an Application in a Case seeking to reopen the proceeding. The principal purpose for doing so was to formalise the unilateral attempt by the Applicant, after the close of submissions on

18 November 2011, of the filing of an affidavit by Michael McCrudden, who was the solicitor formally acting on behalf of the Applicant in relation to the RSA and subsequent Independent Merits Review. In addition, the Applicant also sought to further amend its grounds for review, to allege that there was a duty to inquire as to more recent country information, in respect of which the Reviewer failed to do.
In the interests of justice, to ensure that the Applicant, who was then in detention, was afforded every opportunity to have a fair hearing,

I resolved to grant leave to reopen the proceeding, and further grant leave to amend the grounds for review. As a consequence, the following affidavits were admitted into evidence:
·The affidavit of Michael McCrudden, affirmed on 5 December 2011, and filed on 10 February 2012, with annexure of a covering email sent 11 March 2011 to [email protected], with 27 pages of the deponent’s submissions, in respect of the Applicant, in support of his submissions made to the Reviewer (the second submissions).
·
Affidavit of Katherine Elizabeth Whittemore, solicitor for the Respondent, sworn on 15 February 2012 and filed on

16 February 2012, annexing various documents passing between the Applicant’s solicitors and the Department, and are the documents said to evidence the Applicant’s solicitors knowledge of the UNHCR Eligibility Guidelines dated 17 December 2010.

Contentions

In addition to the written submissions of both parties, I had the benefit of verbal submissions made, at both the first and second hearings.

It should be noted that at the outset of submissions being made at the first hearing, the Applicant abandoned ground 4, leaving only grounds 1, 2 as amended, 3, and 5 to be determined.

Ground 1

Under ground 1, the Applicant purports to have been denied an opportunity to comment on adverse information which the Reviewer relied on, but failed to put the substance of that information to the Applicant for his consideration and comment. In so doing,

the Applicant was said to have been denied procedural fairness.
In her written submissions, Counsel for the Applicant set out some of the essential considerations in respect of determining whether there had been a failure to provide procedural fairness on this basis.

In particular, she referred to a decision in SZQJP v Minister for Immigration and Citizenship[4], where Smith FM at [27] says of the review process, which view is also relied on by the Respondent, that:
“… it is necessary to consider the significance of the absence of an invitation to comment through the prism of fairness in the particular circumstances, in particular by considering whether the undisclosed source contained information which was “credible, relevant and significant” to the decision to be made by the refugee assessor.”
Counsel for the Respondent, whilst adopting the view expressed above by Smith FM, also put emphasis on the need to consider:
“… the factual issues arising in the review, the path of reasoning adopted by the decision-maker, and the novelty, credibility and materiality of the information to the decision.”[5]
[4] [2011] FMCA 785
[5] See SZQEK v Minister for Immigration and Citizenship [2011] FMCA 628 [31]
The Applicant’s Counsel emphasised that the Applicant is entitled to be informed of the critical issues on which the decision may turn, and to have an opportunity to comment on the substance of adverse information that is credible, relevant and significant to the decision. She acknowledged, however, that there was no general obligation for a Reviewer to provide a claimant with an opportunity to comment on every item of accompanying information, which might be relied on, in the course of reaching a decision.[6] .
[6] See MUIN v Refugee Review Tribunal (2002) 190 ALR 601 631, [123]
[7] (2002) 119 FCR 312 332 [48]
Counsel for the Respondent, rightly in my view, cites Giles J in

NAAX v Minister of Immigration and Multicultural Affairs[7]
at [48] that it is:
“for a decision-maker to consult a wide selection of country information when making or reviewing a refugee status determination.”
At [52] his Honour defines in part the role of a Reviewer.

He highlights that, like the Refugee Review Tribunal, an Independent Merits Reviewer is not a contradictor, and the status determination is not an adversary proceeding. The Reviewer “is, or becomes, by way of being an expert in the circumstances of various countries, and must assess what is claimed by the applicant in the light of that knowledge”, whether the knowledge is carried in the Reviewer’s head, or contained in a library of material. There will be a “mass of country information available”, and the selection of what information is relevant in any particular case is a matter for the Reviewer, as part of his or her reasoning process. It would be impractical for the Reviewer to prepare for an interview “as if he or she were preparing for a major cross-examination of a witness in a case, assembling all of the material which might possibly controvert the case put forward, bearing in mind the rule in Browne v Dunn (1893) 6 R 67.”[8]
[8] NAAX v Minister for Immigration and Multicultural Affairs op cit. at [55]
Both Counsel contended, and accepted, that there are circumstances in which fairness requires the disclosure of particular country information, and an opportunity to comment or respond. For example, where the information comprises new material relating to a change of circumstances in the relevant country, which is decisive of the Applicant’s claim.[9]
[9] See Re Minister for Immigration and Multicultural Affairs; ex parte MIAH (2001) 206 CLR 57
The Applicant draws attention to the fact that the Reviewer relied on country information to find that he was not satisfied that the Taliban or insurgency specifically targets Hazara Shias, nor was there evidence of discrimination of Hazaras that was severe enough to amount to persecution. At [11] of the Applicant’s written submissions, those items of country information said to have been relied on that was adverse to the Applicant, and in respect of which the Applicant was not invited to make comment on, were:
a)Amnesty International Report, Afghanistan 2010 - 28 May 2010;
b)BBC Country Profile Afghanistan June 2010;
c)Political Handbook of the World Online edition Afghanistan 2010;
d)Several RRT documents entitled “Country Advice”; and
e)UK Home Office Country of Origin Report 8 April 2010.
Simply put, the Applicant contends that the above information was relied upon by the Reviewer to reach the conclusions he did about discrimination against Hazara Shias and their targeting and that such information should have been put to the Applicant for comment.
In conclusion, on this ground the Applicant contends in [18] of his written submissions to this Court that a failure to show country information, and to tell the Applicant the significant aspects of the adverse country information, materially affected the Applicant’s ability to deal adequately with “adverse information that is credible, relevant and significant to the decision to be made”.[10]
[10] See Kioa v West (1985) 159 CLR 550 at [44]
The Respondent contends that the several items of country information which have been identified by the Applicant, along with “other information”, which is said to have been relied on to support the propositions that the Taliban does not specifically target Hazara Shias, and its social discrimination against Hazaras is not so severe as to amount to persecution, was drawn from the list of documents set out in [10] of the Reviewer’s reasons. The Applicant has ceased upon these listed documents in support of this ground as those not brought to his attention for comment.
The Respondent contends that although the above identified country information was consulted by the Reviewer, as acknowledged by the Reviewer in his reasons, they were nonetheless not information which was specifically relied upon by the Reviewer in the discussion of country information, or in his findings and reasons. The Respondent contends, with which contention I agree, that there is no basis on which it can be inferred that the Reviewer relied upon anything contained in these sources of information adversely to the Applicant. In other words, the information was not “credible, relevant and significant” to the Reviewer’s decision.
I am satisfied, however, that the Reviewer referred to the following country information in reaching the findings concerning Hazara Shias; namely,
a)para 19 - US State Department, 2010 (pursuantly referring to US State Department: country reports on human rights practices for 2009 (Afghanistan), 11 March 2010);
b)paras 20, 41 and 42 – DFATs report dated 21 February 2010 (“Afghanistan: situation of the Hazara minority”);
c)
para 21 – New York Times dated 3 February 2010

(“Hazaras hustle to head off class in Afghanistan”);
d)paras 25, 29 and 42 of Cooperation for Peace and Unity (CPAU) report (pursuantly referring to conflict analysis: Jaghori and Malistan districts, Ghazni province, April 2009);
e)paras 26 and 42 – Finnish Immigration Service, the current situation in Jaghori district of Ghazni, 10 December 2009;
f)para 28 – DFAT report, February 2009 (presumably referring to “Afghanistan: CIS request no AFG 9509, situation for Hazaras in Ghazni, Uruzgan and Daikundi provinces”, 3 February 2009);
g)para 40 – Christian Science Monitor, “Afghanistan’s success story: The liberated Hazara minority”, 6 August 2007.
Significantly, in my view, it is to be noted that each of the sources of country information listed above was before the RSA officer and recited in the RSA decision. In SZQEK[11] Smith FM was not satisfied a failure to disclose the existence or content of documents which had been cited in the RSA assessment amounted to a breach of procedural obligations, concluding that the Applicant, “was sufficiently on notice as to their existence and materiality”. Smith FM said:
In my opinion, consideration of the fairness of the procedures followed by Mr. Karas [the Reviewer] requires consideration of the manner in which country information has been presented and addressed by the Department of Immigration in the course of the preceding RSA assessment. It was plain, in my opinion, that the issues which the Reviewer would be addressing would continue to be the issues which had been addressed by the RSA assessment, and that the applicant’s refugee claims addressed in the RSA would be reviewed in the light of the material previously cited in the RSA and such additional claims, evidence and country information which might become available to the Reviewer.
[11] SZQEK v Minister for Immigration and Citizenship [2011] FCMA 628 at [50] – [52]

In like fashion, the Applicant and his advisors, I am confident, were well aware of the issues to be addressed by the Reviewer and had the opportunity to present information, to make submissions and comment on adverse information that was well within the knowledge of the Applicant and his advisers through the RSA process, but more generally within their knowledge as being relevant information on issues that arise in these types of claims. My view in this regard has been further buttressed by the material set out in the affidavit of

Ms Katherine Whittemore wherein she highlights the knowledge within the Applicant’s legal advisers of the 17 December 2010 UNHCR guidelines and generally issues of discrimination against Hazaras,

or Shia Muslims in Afghanistan.
In Minster for Immigration and Citizenship v SZQHH[12] the majority of the Full Court of the Federal Court (Rares and Jagot JJ) at [30] stated:
30.… the reviewer’s obligation of procedural fairness did not require the reviewer to put to the applicant every piece of country information that the reviewer was considering. Rather, procedural fairness required that the applicant be given the substance of the credible, relevant and significant information available to the reviewer on an issue in the review, of which the applicant was not already on notice. The purpose of giving a person in the position of the applicant the substance of such information is to enable him or her to have an opportunity to deal with its potentially adverse consequences by responding to the decision-maker on those consequences. That enables the decision-maker to take into account the person’s answer to the substance of information that has the potential of being used adversely to his or her interests. Affording the person an opportunity of dealing with some matter that he or she has not already had a chance to address in the process ensures that the process itself is fair.
31.But the substance of such information is, generally, distinct from the particular mode or source of its expression, which could be in a book, a news or journal article, or in an audio or audio visual form, such as a radio or television program, or in a number of those.

In general, the decision-maker need not disclose more than the substance of the information, however it has been conveyed to him or her. The position may be different if the particular form in which the information was conveyed itself affects the meaning of the information or because some unusual or particular characteristic has a bearing on its credibility, relevance or significance. For example, a decision-maker might put to a person information that had been taken out of context. Depending on the circumstances, such conduct might fall short of what procedural fairness would require unless the decision-maker also identified the context or the way in which the context affected unless the decision-maker also identified the context or the way in which the context affected the information being put.
[12] [2012] FCAFC 45
I am satisfied that the circumstances addressed by the Full Court where it found that there was not a denial of procedural fairness resonate with the matter before me.
For all of the above reasons the Reviewer, in my view, did not deny procedural fairness to the Applicant by failing to disclose or invite comment on country information that was ultimately referred to in the reasons for decision, particularly having regard to the knowledge of such matters that can be essentially intuited to the Applicant and his advisors, arising from the earlier RSA assessment and the general knowledge of the situation in Afghanistan from readily accessible country information within the knowledge of the Applicant’s advisors. Accordingly, ground 1 must fail.

Ground 2

The Applicant contends, in respect of ground 2, that the Reviewer failed to consider recent country information which was said to have been provided to the Reviewer in the second submissions.

The Applicant further contends that the Reviewer relied on outdated information. Whilst the Reviewer relied on UNHCR guidelines, he did not mention, in his reasons, the 17 December 2010 guidelines.

In addition, and by why of emphasis, from the Applicant’s point of view, the Reviewer highlighted various earlier guidelines.

The Applicant’s contention is that inferentially, any general statement about UNHCR guidelines within the body of the reasons can only be a referral to those that have been identified in the body of the reasons, namely the earlier ones.
Should the Reviewer, as the Applicant contends, not have been aware of the more recent guidelines, the Applicant, by its amended ground, contends there was an obligation upon the Reviewer, in which obligation he failed, to make due inquiries which would have alerted the Reviewer to the new guidelines, which would also have alerted the Reviewer to changed circumstances in Afghanistan The significance of the new UNHCR guidelines, from the Applicant’s perspective, summarised in the new introductory statement, namely:
These guidelines supersede and replace the July 2009 UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Afghanistan. They are issued against the backdrop of a worsening security situation in certain parts of Afghanistan and sustained conflict-related human rights violations as well as contain information on the particular profiles for which international protection needs may arise in the current context in Afghanistan.
Should the Reviewer have made enquiry and been alerted to the changed situation in Afghanistan, the Applicant contends, it was incumbent on him to make further enquiry as to what the changed circumstances were, and how they affected the Applicant’s claim of refugee status.
The Applicant contends that, in addition to relying on outdated country information, he failed to take into account more recent country information as alluded to by the Applicant in his second submissions, including a Department of Immigration and Citizenship report entitled “Country Guidance Note – Afghanistan” dated November 2010.
In response to all of that, the Respondent contends that there is no basis on which this Court can draw an inference that the Reviewer failed to have regard to the country information referred to in the Applicant’s second submissions. The question of what country information was relevant, and what weight to give such information, was a matter for the Reviewer. Particularly where the statement of reasons was not produced pursuant to any statutory requirements, no inference is available that a failure to refer to particular evidence means that the evidence was overlooked. In any event, provided the Reviewer had addressed and dealt with each of the Applicant’s claims, a failure to have regard to any particular country information would not amount to a jurisdictional error.
The Respondent drew the Court’s attention to the similarities of the Reviewer’s reference to UNHCR guidelines in this case and one where it was found that the Reviewer, the same Reviewer, despite not referring directly to the December 2010 guidelines, was found by Smith FM to be referring to the December 2010 UNHCR guidelines without properly identifying them as such.[13] Also the Reviewer made findings in both this case and SZQEK in the same terms that were found to be necessarily based on the later guidelines. The Reviewer considered both these cases near to the same time. I am persuaded that is sufficient for me to draw an inference that, like in SZQEK, the Reviewer was aware of the latest UNHCR guidelines.
[13] See SZQEK v Minister for Immigration and Citizenship [2011] FMCA 628 at [25]
In respect of the contention that the Reviewer failed to take into account the second submissions lodged by the Applicant, through the affidavit of Ms Whittemore, the Respondent seeks to highlight known dates that show the likelihood of the decision and submissions passing in the post, and the probability of them not being before the Reviewer when the decision was sent out. In any event, the Respondent says that there is no evidence upon which the Court could rely to say that the Reviewer had, or should have had, the second submissions and further, once the decision was sent out, there was no obligations to recall it upon later receipt of the second submissions. To buttress the Respondent’s contentions on this ground, he highlights the fact that

Mr McCrudden could have provided, but did not, evidence of what the adverse information was, and his response to it, that may have been persuasive, or potentially persuasive of a different result if informed of the adverse information and afforded the opportunity to comment upon it.
For the above reasons, I am not satisfied that, (a) the Reviewer relied upon outdated country information, and further, that he ignored or failed to take into account further country information as provided in the second submissions of the Applicant. Accordingly, this ground must fail.

Ground 3

In essence, ground 3 is based upon an assertion that the Reviewer failed to deal with an aspect of the Applicant’s claim; namely, as a Hazara person who had been involved in a land use or ownership dispute he would be at risk of persecution. The Applicant contends that, although the Reviewer concluded that Hazaras are not generally targeted by the Taliban or the insurgency, that fact does not necessarily mean that the Applicant is not a refugee. The Reviewer stated

“it is necessary to consider the Applicant’s particular experience and claims.” In restating the Applicant’s claims, the Reviewer also acknowledged that the Applicant left Afghanistan because the Kuchi stole the family land and killed his uncle and brother.
The UNHCR Eligibility Guidelines state that “UNHCR considers that members of ethnic groups, including but not limited to 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.” The Applicant asserts that he has clearly been involved in a land dispute, albeit some time ago. He further asserts that if he were to return to Afghanistan the issue about his lost land to the Kuchi people would be relevant again.
In my view, to suggest that the Reviewer has failed to take into account that aspect of the Applicant’s claims; namely, his background and circumstances of how he left Afghanistan, denies the reality of the Reviewer’s written reasons. The Reviewer clearly dealt with the Applicant’s claim that his family had been involved in a land dispute in which their land was taken by the Kuchi. The Reviewer accepted that the Applicant left Afghanistan in 1984 for Pakistan, because of the Kuchi/Pashtuns taking their land and killing his uncle, brother and another villager.
However, the Reviewer did not accept that “the Taliban/Pashtuns are personally interested in him, given the time since he last lived in Afghanistan, and the changed circumstances from when the Kuchi seized their lands all those years ago.” Further, the Reviewer found that the fact that the Applicant “may have been affected in part by a land dispute so many years ago … does not amount separately, or cumulatively to a well-founded fear of persecution for a Convention reason.”
Accordingly, for the above reasons ground 3 is not sustained.

Ground 5

Put simply, this ground relates to the Applicant’s contention that the Reviewer failed to consider an issue, squarely raised, of whether State Protection might be denied for reasons of ethnicity or religion to the Applicant. The Applicant contends that should the Reviewer find that there is generalised violence, which he did, from which the Applicant is at risk, the Reviewer should go on to inquire whether the Convention nexus is met by a failure of State Protection. In support of that contention, the Applicant relies upon MIMA v Khawar and Ors[14], where Ms Khawar suffered “personally motivated domestic violence”. At [31] Gleeson CJ states:
“Where persecution consists of two elements, the criminal conduct of private citizens and the toleration or condonation of such conduct by the state or agents of the state, resulting in the withholding of protection which the victims are entitled to expect, then the requirement that the persecution be by reason of one of the Convention grounds may be satisfied by the motivation of either the criminals or the state.”
[14] (2002) 210 CLR 1
In short, the Applicant contends that the Reviewer should have considered whether the Applicant would have had the protection of the State withheld because he was Hazara, and to the degree that he failed to do so, the Reviewer’s reasoning did not go far enough.
In response, the Respondent highlights that the Reviewer did not make any specific finding that the Applicant would face a real chance of harm from criminal activity or generalised violence if he were to return to Afghanistan. The Reviewer noted that given the Applicant’s long absence from Afghanistan, he had not himself been the victim of any such violence in the recent past.
In any event, the Respondent contended that even assuming that a risk of such harm could not be dismissed, the Applicant did not raise a claim that there would be a selective enforcement of the law, or a discriminatory withholding of protection, in relation to Hazaras or Shias, for reasons of their ethnicity or religion.
The Applicant claimed, in his statutory declaration, that he would be killed by Taliban Pashtuns, and that he feared harm from the Taliban “because I am Hazara and Shia.” The Applicant stated that

“Protection is unavailable to Shia, the government cannot protect itself from the Taliban.” In other words, it is clear that any issue of State Protection was raised in the context of Convention related persecution of Hazaras by the Taliban Pashtuns, which the Reviewer considered and determined.
It is clear that the Applicant’s submissions were primarily concerned with the claim that the Applicant would be seriously harmed by the Taliban, or other extremist groups because of his race and religion,

and the capacity or ability of the State to protect the Applicant against such Convention related harm. The Applicant’s further submissions were also premised on the claimed fear of persecution by the Taliban, or other extremist groups for Convention reasons, and the limited ability of the Afghan authorities to maintain order and secure the safety of citizens.
The Applicant did not articulate a claim that Afghan authorities would be unwilling, as opposed to unable, to protect the Applicant against harm from non-State actors that were not Convention-related, such as generalised violence or criminal activities, and that such unwillingness would be for reasons of his ethnicity or religion.
The Applicant’s case, and evidence, in my view, did not squarely raise the issue of State Protection, nor did that issue arise in the context of whether State Protection would be denied to the Applicant because he is a Hazara Muslim. The reference to State Protection was in the context, in my view, of the inability of the State to provide protection to the citizens generally because of the insurgency. Such a reference does not enliven an obligation to enquire as to, and make findings about, whether that failure to provide protection generally attracts a basis for the application of the Convention.
I am not satisfied that the need for the Reviewer to investigate the question of State Protection was squarely raised by the facts and circumstances of this case. Accordingly, ground 5 also fails.

Conclusion

For all of the above reasons, I am satisfied that the Reviewer has not committed a jurisdictional error and, therefore, the Applicant’s review filed on 28 July 2011, and later amended, must be dismissed.

I certify that the preceding sixty-two (62) paragraphs are a true copy of the reasons for judgment of O’Dwyer FM

Date: 23 May 2012