MZYPA v Minister for Immigration
[2012] FMCA 43
•30 January 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZYPA v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 43 |
| MIGRATION – Review of decision of Independent Merits Reviewer – applicant a Hazara Shia – applicant asserting failure by Reviewer to address issues of economic and other persecution – alleged failure to consider claims cumulatively. |
| Migration Act 1958 (Cth) |
| Minister for Immigration and Multicultural Affairs v Khawar (2002) 210 CLR 1 MZYLR v Minister for Immigration and Citizenship [2011] FMCA 633 Minister for Immigration and Citizenship v SZONJ [2011] FCAFC 85 NABE v Minister for Immigration and Multicultural and Indigenous Affairs(No.2) (2004) 144 FCR 1 W353 v Minister for Immigration and Multicultural Affairs [2002] FCA 398 |
| Applicant: | MZYPA |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | J. BLOUNT IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER |
| File Number: | MLG 1103 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: | Ms N. Karapanagiotidis |
| Solicitors for the Applicant: | Victoria Legal Aid |
| Counsel for the First Respondent: | Mr R. Knowles |
| Solicitors for the First Respondent: | Australian Government Solicitor |
THE COURT ORDERS THAT:
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 1103 of 2011
| MZYPA |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| INDEPENDENT MERITS REVIEWER |
Second Respondent
REASONS FOR JUDGMENT
Introductory
In this matter, the applicant seeks judicial review of a decision of an Independent Merits Reviewer (“Reviewer”) dated 31 May 2011. The Reviewer found that the applicant was not a person to whom Australia owed obligations pursuant to the Refugees Convention.
The applicant advances four grounds of error on the part of the Reviewer each constituted by a failure on the part of the Reviewer, it is alleged, to give proper attention to or deal with various aspects of the applicant’s claims advanced before him.
For the reasons that follow, I do not think that these criticisms are made out and it follows that the application must be dismissed.
The Reviewer’s Decision
Before coming to the individual grounds of error asserted, it is appropriate to spend a few moments looking at the structure and nature of the Reviewer’s decision. After setting out some brief introductory remarks and a citation of the relevant law, neither of which are the subject of any criticism, the Reviewer came to look at what were described as “Claims and Evidence.”
The Reviewer traversed the matters advanced by the applicant at his entry interview. The Reviewer noted that the applicant had claimed that his family left Afghanistan in 1992 because the Taliban had started attacking villages and further noted at paragraph 17 (Court Book (“CB”) 179) that:
“… He did not stay in Afghanistan because there is no security there because of the Taliban. Being a Shia in Afghanistan is a crime and if the Talibs and Pashtuns catch you they chop your head off.”
The Reviewer went on to refer to the applicant’s statutory declaration declared on 1 May 2010. At paragraph 22, the Reviewer noted an incident where, in around 2007, the applicant who had been deported to Afghanistan was handed over by a smuggler to Baluchi people who held him for about two weeks until his family paid a ransom to release him.
At paragraph 24, the Reviewer noted the applicant’s claim that it was very dangerous in Afghanistan, even in Kabul. The Reviewer noted:
“… The claimant stated that if he returns to Afghanistan he will be killed. He fears the Taliban and Pashtuns who attack Hazaras and Shias. He does not know the country and has no family to assist him. The government will not protect him because it is a crime to be Hazara and Shia in Afghanistan.”
The Reviewer noted the receipt of a 38 page submission from the claimant’s advisor under cover of a letter dated 28 September 2010. He noted (paragraph 28) that:
“… His fear of persecution because of the hatred of the Taliban is based on his race and religion (he is Hazara and a non practising Shia Muslim)… It was additionally stated that the claimant fears he will also be a target because of the time he has spent illegally in Iran. He fears that he may be accused of being an Iranian spy as he will be identified by the way he speaks as someone who has spent significant time in Iran.”
The Reviewer also noted in paragraph 29:
“It was asserted that the Karzai Government and allied forces are unable to secure any areas in Afghanistan and cannot protect themselves and cannot protect Hazaras. “We submit that the applicant’s case is prima facie as he remains in an ethnic and religious minority and there is no guarantee for the safety of Hazaras in Afghanistan.”
The Reviewer noted a further submission from the applicant’s advisors dated 24 March 2011 that relevantly stated (paragraph 34, CB181):
“It was stated that the claimant has lived outside Afghanistan since he was 3 years old. He has no survival skills, no knowledge of the area and how to avoid the Taliban as is evident in his claims. He has no support network which might diminish the risk of him coming to serious harm.”
At paragraph 37, the Reviewer noted:
“It was stated that the claimant instructs that he has no place in Afghanistan where he would be safe; his fear is of the Pashtuns and Taliban who he says will become aware of his whereabouts wherever he resides in Afghanistan.”
The Reviewer noted the refusal of the applicant to attend an interview on 1 May 2011 and set out, at some length, the country information which had been relied upon.
Under the heading “Findings and Reasons”, the Reviewer noted that, at paragraphs 56 to 57:
“56. The reviewer was not in a position to make a direct judgement as to whether the claimant was a credible witness. Although the claimant was not assisted by his failure to avail himself of the opportunity of an interview with the reviewer, nor was he or his credit adversely affected, other than by the reviewer’s inability to put particular difficulties or adverse material to the claimant at interview.”
57. Understandably, given his lengthy absence from Afghanistan, some of the claimant’s assertions about Afghanistan were simply demonstrably incorrect: for example, that it is a crime in Afghanistan to be a Hazara and a Shia. Such errors go to reliability rather than credibility.”
The Reviewer categorised the applicant’s claims at paragraph 58 as being:
·Fear of persecution by the Taliban and Pashtuns in Afghanistan on account of his ethnicity and religion
·Fear of being accused of being an Iranian spy as people will identify him as someone who has spent significant time in Iran by his speech.
The Reviewer noted at paragraphs 59 and 60 that:
“59. The claimant has further stated, in his statutory declaration of 1 May 2010 that the Afghan government will not protect him because it is a crime to be Hazara and Shia in Afghanistan.
60. In the later submission of 24 March 2011 it was stated that as the claimant has lived outside Afghanistan since he was 3 years old he has no knowledge or support network which might diminish the risk of him coming to serious harm.”
The Reviewer went on to deal in some detail with the various aspects of the country information and concluded, at paragraph 70, that:
“The reviewer is not satisfied that the material consulted provides independent corroboration of claims that the Taliban (or Pashtuns generally) now specifically targets Hazara Shias on a systematic and discriminatory basis, notwithstanding that individual Hazaras may have been targeted in particular places either individually or for other reasons, or as part of the general insurgency and the Taliban’s attacks on communications and facilities. …”
At paragraph 73, the Reviewer found:
“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.”
At paragraph 74, the Reviewer went on to refer to the applicant’s advisor’s submission of September 2010 in which it was stated without further elaboration that:
“the applicant’s case is prima facie as he remains in an ethnic and religious minority and there is no guarantee for the safety of Hazara Shi’as in Afghanistan.”
The Reviewer then turned to consider the particular claims advanced by the applicant and addressed the Iranian spy issue first. The Reviewer was not satisfied that the applicant was at any risk of harm in this regard.
The Reviewer also dealt with the disappearance of the applicant’s father in 2002 and concluded that this issue “is dealt with in the general discussion of persecution or insecurity under “Hazara ethnicity and Shia religion”.”
The Reviewer went on to say under the heading “Other issues of concern”:
“As a young man who has lived almost his whole life outside Afghanistan, the claimant would no doubt face significant non-Convention difficulties in returning to and integrating into Afghanistan.”
That finding itself followed a conclusion at paragraph 84 that the applicant did not meet the criterion for a protection visa.
Against this background, I turn to consider each of the grounds advanced in turn.
Ground 1 – The failure of the reviewer to deal adequately with the “non-Convention difficulties” the applicant would likely face upon return to Afghanistan
Counsel for the applicant referred the Court to the applicant’s claims articulated at CB 51, 52, 109 and 161 which detailed the difficulties the applicant would face arising from the fact that he has not lived in Afghanistan, but in Iran, since the age of three. The applicant did claim, quite correctly it would seem, that he was not raised in Afghanistan, had no family there and no support or assistance. At
CB 109, he claimed to have no family in Afghanistan and as a result, he would be an easy target; and at CB 161, the applicant claimed he had no survival skills and no knowledge of the area and how to avoid the Taliban.
It was submitted that despite the Reviewer’s finding that there was no generalised persecution of Hazaras and Shias, there was a clear finding of generalised violence (at CB 186).
It was submitted essentially that the Reviewer failed to consider whether, if the applicant returned to Afghanistan and was the subject of non-Convention related persecution, State protection might be withheld for a Convention reason. Both parties drew the Court’s attention to Minister for Immigration and Multicultural Affairs v Khawar (2002) 210 CLR 1 at [31] where the High Court pointed out that:
“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.”
In this regard, counsel for the applicant referred to MZYLR v Minister for Immigration and Citizenship [2011] FMCA 633, in which case Riley FM found that the applicant had articulated a fear of persecution on the footing of discriminatory failure to provide State protection and found that the Reviewer in that case had not addressed that issue. Counsel submitted that MZYLR was on all fours with this case but I should note that while there are certainly similarities, each case turns on its own facts.
Counsel pointed to the passage at CB 53 where the applicant stated:
“The Hazara people are constantly being persecuted by the Taliban and no one reports it. The government will not protect us because it is a crime to be Hazara and Shia in Afghanistan.”
Counsel also pointed to a passage at CB 109 where it was asserted that:
“Hazara are a targeted and vulnerable minority group without access to police protection.
… The Afghan authorities cannot provide protection for ethnic Hazaras. …
The Karzai Government and allied forces are unable to secure any areas in Afghanistan cannot protect themselves.”
Counsel further referred to the country information dealing with corruption thus leaving Afghans unable to avail themselves of the protection of the authorities (CB 115), and further country material which it was submitted:
In relation to Hazaras, it emphasises that there is no tangible sign that ethnic tensions have subsided and no evidence to show that Hazaras are protected as evidenced in the following, and that the Afghan Government is limited in its ability to control or improve the situation.
Counsel for the Minister referred to Minister for Immigration and Citizenship v SZONJ [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.”
Here it was submitted that the claims made by the applicant were both broad and broadly put. Counsel referred to NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 where at [60] the Full Court said:
“This does not mean that the tribunal is only required to deal with claims expressly articulated by the applicant. It is not obliged to deal with claims which are not articulated and which do not clearly arise from materials before it.”
The Full Court continued at [68]:
“Although such a claim might have been seen as arising on the material before the tribunal it did not represent, in any way, “a substantial clearly articulated argument relying upon established facts” in the sense in which that term is used in Dranichnikov. A judgment that the tribunal has failed to consider a claim not expressly advanced is, as already indicated in these reasons, not lightly to be made. The claim must emerge clearly from the materials before the tribunal.”
Here, I accept that the relevant test is whether or not, reading the decision of the Reviewer as a whole, the claim as to persecution on the footing that the State will withhold State protection for a Convention based reason was either articulated and/or not addressed.
The first thing to be said is that the applicant’s submissions were very lengthy and detailed. Read fairly, however, it is clear that the primary contention advanced on the applicant’s behalf was that he faced persecution as a Hazara and/or Shia. A subsidiary argument as to a fear on the basis of being taken for Iranian was also clearly articulated.
The question is whether the matters to which I have referred constitute a claim sufficiently clearly articulated as to require the Reviewer to address it in terms. Clearly were that to be the case, MZYLR would lead to the conclusion that the application for judicial review must be upheld.
It is clear that the Reviewer thought that the only matters which might give rise to a Convention reason in this case were the Iranian spy issue and the Hazara/Shia ethnicity. That is apparent from paragraphs 77 to 84 of the Reviewer’s decision (CB 188 to 189).
The Reviewer had already found that the assertion that it was a crime to be a Hazara and a Shia in Afghanistan was “demonstrably incorrect” (paragraph 57, CB 184).
I accept the submission of counsel for the Minister that the claims as to difficulties arising out of corruption would apply to all members of the community and not simply to the applicant.
The Reviewer’s generalised findings to the effect that Hazaras did not face persecution seem to me to have covered, in a more general way, the specifics of the claim now sought to be advanced to the extent that it might be thought to have been clearly articulated.
So far as the assertion that the government of Afghanistan was unable to protect itself, and thus would not be able to protect the applicant, I think that the authority of SZONJ is directly applicable.
It needs to be borne in mind that the Reviewer’s decision needs to be read fairly as a whole. The assertions made as to lack of State protection arose directly in the context of the applicant’s fear of harm as a Hazara generally. The Reviewer made a finding that this was not the case, a finding which is not itself the subject of attack.
In the circumstances, I do not think this ground is made out.
Ground 2 – The alleged failure of the Reviewer to consider whether the applicant would suffer social discrimination, economic discrimination and/or serious harm arising from the general insecurity in Afghanistan
The applicant claimed that the Reviewer failed to make any finding in relation to the question of economic oppression amounting to persecution. Reference was made to the country information paraphrased or set out at CB 112-113, and CB 127- CB 138. The latter, in particular, states:
“The following report highlights the difficulties that the minority groups in Afghanistan face. Particularly, the report includes the Shia Muslims and Hazara peoples as a group that continues to face widespread abuse and oppression.
… “Ethnic minorities continue to face oppression, including economic oppression. Dasht-i Barchi, one of Kabul’s poorest neighbourhoods, was home to a large Hazara population. Average earnings per day were 13 Afghanis (25 cents) per person, although the minimum wage was 63 Afghanis ($1.25) per day.”
It was submitted that the Reviewer simply failed to make any finding about economic oppression. Counsel for the Minister referred to findings of the Reviewer at paragraphs 71 to 72 which were broadly to the effect that the position of Hazaras is now much improved. That country information had already been made available to the applicant. It was submitted that the issue of economic discrimination was not clearly put.
In my view, the Minister’s submission should be upheld. The question of economic oppression was only a few lines in very substantial tranches of material, the primary purport which was, as I have described, that the applicant faced persecution on the basis of being a Hazara Shia. I do not think that the Reviewer fell into error in not dealing with it in terms.
The applicant also pressed claims that the Reviewer failed to address his claims arising from social discrimination and the general insecurity in Afghanistan. I accept the submissions of the first respondent set out at paragraphs 51-63 of his written submissions in this regard.
Ground 3 – The failure to consider the applicant’s claims in relation to being kidnapped by Baluchis
The applicant had very clearly articulated that he had been kidnapped by Baluchis in 2007. He was handed over by a smuggler to the Baluchis who held him as a prisoner and demanded a ransom which was eventually paid.
Nonetheless, it is clear from CB 52 that when the applicant said that he would be killed if he went back to Afghanistan, it was not for fear of the Baluchi. At CB 52, he said:
“I fear that if I go back to Afghanistan, I will be executed. …
…
In Afghanistan, I fear that the Taliban and Pashtoons will harm me or kill me.”
The Reviewer noted the claim about the Baluchis (paragraph 22, CB 180).
The Reviewer also noted at paragraph 29:
“It was asserted that the Karzai Government and allied forces are unable to secure any areas in Afghanistan and cannot protect themselves and cannot protect Hazaras. “We submit that the applicant’s case is prima facie as he remains in an ethnic and religious minority and there is no guarantee for the safety of Hazaras in Afghanistan.”
At paragraphs 59-60, the Reviewer noted that the applicant stated:
“The claimant has further stated, in his statutory declaration of
1 May 2010, that the Afghan government will not protect him because it is a crime to be Hazara and Shia in Afghanistan.
In the later submission of 24 March 2011, it was stated that as the claimant has lived outside Afghanistan since he was three years old he has no knowledge or support network which might diminish the risk of him coming to serious harm.
It was submitted that the claim in relation to the Baluchi had simply not been addressed.
The submission made by the Minister was first, that this was not Convention-related persecution and second, that the applicant had not articulated that this was a claim of harm that would arise for him in the reasonably foreseeable future.
In my view, these submissions are correct. The kidnapping for money by the Baluchi tribesmen was a criminal activity, pure and simple, and there was nothing to suggest that it had happened to the applicant because of his ethnicity. Furthermore, as I have indicated in the passages I have quoted, the applicant did not assert any fear of the Baluchi in the future.”
I think the Reviewer’s analysis was correct.
Ground 4 – The failure to consider the applicant’s claims cumulatively
Counsel for the applicant submitted that the Reviewer had failed to consider the applicant’s claims taken cumulatively and that he should have done so. Counsel referred to W353 v Minister for Immigration and Multicultural Affairs [2002] FCA 398 at [21], where French J
(as his Honour then was) said:
“It may be accepted that in determining whether an applicant for a protection visa has a well-founded fear of persecution for a Convention reason, the Tribunal must have regard to the whole of the case advanced by the applicant – Khan v Minister for Immigration & Multicultural Affairs [2000] FCA 1478. It may be that in a particular case there is a number of factors which individually might not support the existence of a well-founded fear of persecution but which taken together would support such a fear. In Khan’s case these were described, in the submissions put to Katz J, as “risk factors”. They were causative factors which might collectively engender the relevant risk.”
It was submitted that the way in which the Reviewer dealt with these matters constituted a failure to consider the various claims by the applicant taken together.
Counsel for the Minister submitted that these claims were not, as was the case in W353, such as to be considered cumulatively. It was submitted that the claims, of their nature, did not operate in this way.
Basically the applicant’s claims were a fear of harm on the basis of being a Hazara Shia, and his fear of being taken for an Iranian spy.
The other matters the applicant raised, such as his difficulties in re-establishing himself in a country with which he is wholly unfamiliar, were found by the Reviewer not to amount to Convention-based reasons.
The various matters raised do not interrelate with one another in such a fashion as to be cumulative. Once the express findings are made that Hazara Shias do not face generalised persecution, and the express finding that the Iranian spy claim was not made out, there was no obligation in the context of the case to consider the applicant’s claims cumulatively.
Conclusion
In my view, and read as a whole and in a fair way with a mind not overly attuned to the perception of error, it cannot be said that the Reviewer fell into jurisdictional error and accordingly, the application must be dismissed.
I certify that the preceding fifty-nine (59) paragraphs are a true copy of the reasons for judgment of Burchardt FM
Date: 30 January 2012
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