MZYOV v Minister for Immigration
[2012] FMCA 291
•18 April 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZYOV v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 291 |
| MIGRATION – Independent Merits Reviewer – alleged failure of state protection – whether considered – whether misapplication of test. |
| Minister for Immigration & Citizenship v SZONJ (2011) 194 FCR 1; (2011) 278 ALR 608; (2011) 122 ALD 87; [2011] FCAFC 85 SZQDZ v Minister for Immigration & Citizenship [2012] FCAFC 26 |
| Applicant: | MZYOV |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | PAUL KANOWSKI IN HIS CAPACITY AS INDEPENDENT MERITS REVIWER |
| File number: | MLG 1097 of 2011 |
| Judgment of: | Riley FM |
| Hearing date: | 30 March 2012 |
| Date of last submission: | 30 March 2012 |
| Delivered at: | Melbourne |
| Delivered on: | 18 April 2012 |
REPRESENTATION
| Counsel for the Applicant: | Melanie Szydzik |
| Solicitors for the Applicant: | Victoria Legal Aid |
| Counsel for the First Respondent: | Chris Horan |
| Solicitors for the First Respondent: | Sparke Helmore |
| Counsel for the Second Respondent: | No appearance |
| Solicitors for the Second Respondent: | Sparke Helmore |
ORDERS
The application filed on 28 July 2011 and amended on 9 March 2012 be dismissed.
The applicant pay the first respondent’s costs, fixed in the sum of $6,240.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 1097 of 2011
| MZYOV |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
And
| PAUL KANOWSKI IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application for review of a recommendation made by an Independent Merits Reviewer.
The applicant sought an extension of time in which to file his application. In view of the decision of the Full Court of the Federal Court in SZQDZ v Minister for Immigration & Citizenship [2012] FCAFC 26, that application was superfluous.
The applicant’s claims
The applicant is a citizen of Afghanistan. He claimed to fear persecution on the basis of his ethnicity, which is Hazara, and his religion, which is Shia Muslim. He claimed that the authorities in Afghanistan are unwilling to protect him due to his Hazara ethnicity.
In terms of his personal history, the applicant said:
a)in June 2008, his father and brother were killed when Kuchis attacked his home village in Warduk province;
b)his remaining family then moved to Kabul;
c)the police harass Hazaras by, for example, demanding weekly bribes from Hazara traders, such as the applicant;
d)in January 2010, the applicant was present at his stall in a large shopping centre when the shopping centre was attacked by four suicide bombers who engaged in a gun battle with the police before exploding their bombs;
e)about 25 people were killed and many more were injured;
f)the applicant sustained minor physical injuries but was seriously psychologically affected by the attack;
g)after the attack, the applicant did not want to go out;
h)he left Afghanistan about one month later.
The applicant also said, more generally, that the police will not assist Hazaras who are the victims of assaults or theft. He said that Hazaras are not given adequate care in the Pashtun dominated health system, sometimes with fatal consequences. The applicant’s adviser submitted that law enforcement is not provided to Hazaras.
The IMR’s recommendation
The IMR accepted that the applicant’s father and brother had been killed by Kuchis in 2008.
The IMR accepted that the applicant had been present at the shopping centre suicide bombing in 2010. The IMR considered that the applicant could be seriously harmed in a similar bombing in the future. However, the IMR considered that the bombing was a random attack rather than persecution for a Convention reason and any similar bombing in the future would not cause the applicant harm for a Convention reason.
The IMR accepted that several Hazaras had been killed by Kuchis in 2010. However, the IMR considered the attack was an isolated incident. The IMR considered that the risk of the applicant being seriously harmed in such an incident in the future was “too remote to constitute a real chance”.
The IMR accepted the applicant’s claim that he had been forced to pay weekly bribes to the police to be allowed to conduct his stall. The IMR considered that the applicant would probably face similar treatment if he returned to Kabul. However, the IMR did not consider that such treatment amounted to serious harm.
In relation to the applicant’s claims that Hazaras are discriminated against in the health care system and will not be protected by the police, the IMR said that he had not found any material corroborating the applicant’s assertions. The IMR said that, in the absence of reliable evidence supporting the claims, he found that the applicant did not have a well-founded fear of persecution on those grounds.
The IMR considered that Hazaras in Kabul did not face a real chance of persecution by reason of their ethnicity.
Ground 1: failure to consider state’s unwillingness to protect
The first ground of review in the amended application filed on 9 March 2012 is:
The Reviewer did not afford me procedural fairness.
Particulars
a)The Applicant claimed that the state of Afghanistan would not protect him owing to his ethnicity as Hazara.
b)The Reviewer found that the Applicant was at risk from serious harm from non-state actors.
c)The Reviewer found that the possible harm was not for a Convention reason, and based on that finding concluded that the Applicant was not a refugee.
d)The Reviewer failed to consider whether the state of Afghanistan was unwilling to protect the Applicant for a Convention reason, namely his Hazara ethnicity.
The applicant argued, and the first respondent accepted, that the applicant had made a claim that the state was unwilling to protect him because of his Hazara ethnicity. The IMR found that the applicant faced serious harm, albeit not for a Convention reason. In these circumstances, the applicant argued that the IMR was required to consider the claim that the state was not willing to protect the applicant.
The applicant relied particularly on Minister for Immigration & Citizenship v SZONJ (2011) 194 FCR 1; (2011) 278 ALR 608; (2011) 122 ALD 87; [2011] FCAFC 85 at [33], where the Full Court of the Federal Court said:
Thus, where there is persecution by a non-state agent for a reason that has no Convention nexus, and that conduct is condoned or tolerated by the state for a Convention reason, the victim may be a refugee within the meaning of the Convention. However, where there is persecution by a non-state agent for a reason that has no Convention nexus and that conduct is not prevented by the state by reason only of the inability of the state to prevent it, such that there is no Convention reason that motivates the state or prevents the state from intervening, the test will not be satisfied. To the extent that AZAAR’s case suggests otherwise, it was not correctly decided.
The first respondent argued that the IMR did in fact squarely address the claims that the authorities were unwilling to protect Hazaras from crime and did not provide Hazaras with adequate health care. The first respondent referred to paragraph 33 of the recommendation, which says that:
[The applicant] also told me about other forms of mistreatment of Hazaras, not based on any first hand experience. He said that Hazara Shias are treated poorly in the health system, with fatal consequences. He said that police fail to assist Hazaras who are victims of crime, and arbitrarily arrest Hazaras. In the reading
I have done about the health system in Afghanistan (sources 34 and 44) and of human rights generally in Afghanistan (particularly sources 4, 42 and 43) I have not seen any suggestion of such practices. Nor has [the applicant] or his agent pointed to anything corroborating his assertions. I do not regard [the applicant] as being in a position to reliably comment on the prevalence of the alleged practices. In the absence of any reliable evidence of systematic serious discrimination of the types asserted, I find that [the applicant] does not have a well-founded fear of such persecution.
The IMR thus considered the relevant claims and formed the view that there was no substance to them. Consequently, there was no factual substratum for the failure of state protection claim. Ideally, the IMR would have set out the relevant test and would have explained his reasons in the language of that test. However, it was not essential for the IMR to do so, in view of the findings that he made. There was no necessity for the IMR to engage in a theoretical discussion about the intricacies of the law relating to a failure of state protection. The IMR did, in fact, consider the relevant claims. This ground is not made out.
Ground 2: application of wrong legal test
The second ground of review in the amended application filed on 9 March 2012 is:
The Reviewer applied the wrong legal test.
a)The Reviewer found that the Applicant was at risk from serious harm from non-state actors.
b) The Reviewer found that the possible harm was not for a Convention reason, and based on that finding concluded that the Applicant was not a refugee.
c) In the premises, the Reviewer incorrectly confined his enquiry in respect of the Convention nexus to the motivation of the perpetrators of the violence, and accordingly applied the wrong legal test.
As discussed above, the IMR did not confine his enquiry to the motivation of the perpetrators of the violence. The IMR looked for, and was unable to find, reliable evidence supporting the applicant’s claims that the authorities selectively discriminated against Hazaras in presently relevant ways. In those circumstances, the IMR rejected the applicant’s claims. Therefore, there were no relevant facts to which the test for a failure of state protection had to be applied. This ground is not made out.
Conclusion
As neither of the applicant’s grounds has been made out, the application must be dismissed with costs.
I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Riley FM
Date: 18 April 2012
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