MZYPG v Minister for Immigration

[2011] FMCA 1025

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MZYPG v MINISTER FOR IMMIGRATION & ANOR [2011] FMCA 1025

MIGRATION – Offshore entry person – application for judicial review – extension of time – whether satisfactory explanation for delay – whether extension “necessary in the interests of the administration of justice” – whether application has reasonable prospects of success – whether grounds have merit – extension of time granted – declaratory relief granted.

Migration Act 1958 (Cth), s.477

Abebe v Commonwealth (1999) 197 CLR 510
Attorney General for the State of New South Wales v Quin (1990) 170 CLR 1
Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 (FC)
Lee vMinister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464
Manoher v Minister for Immigration, Local Government and Ethnic Affairs (No.2)(1991) 24 ALD 410
Minister for Immigration and Citizenship v Applicant A125 of 2003 [2007] FCAFC 162
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration and Multicultural Affairs v Haji Ibrahim (2000) 204 CLR 1
Minister for Immigration and Multicultural Affairs v Khawar (2002) 210 CLR 1
MZYLR v Minister for Immigration & Anor [2011] FMCA 633
NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10
Plaintiff M61/2010E v Commonwealth of Australia; Plaintiff M69 of 2010 v Commonwealth of Australia (2010) 272 ALR 14
Re Minister for Immigration and Multicultural Affairs; ex parte Durairajasingham (2000) 168 ALR 407
SHJB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 134 FCR 43
SZINP v Minister for Immigration and Citizenship [2007] FCA 1747
SZMCD v Minister for Immigration and Citizenship [2009] FCAFC 46
SZNZI v Minister for Immigration & Anor [2010] FMCA 57
SZQFR v Minister for Immigration & Anor [2011] FMCA 785
Tefonu Pty Limited v Insurance and Superannuation Commissioner (1993) 44 FCR 361
Toro Martinez v Minister for Immigration and Citizenship [2009] FCA 528
VQAB v Minister for Immigration and Multicultural Affairs [2004] FCAFC 104
W148/00A vMinister for Immigration and Multicultural Affairs (2001) 185 ALR 703

Applicant: MZYPG

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: SUE ZELINKA IN HER CAPACITY AS INDEPENDENT MERITS REVIEWER

File Number: MLG 1109 of 2011

Judgment of: F. Turner FM

Hearing date: 8 December 2011

Date of Last Submission: 8 December 2011

Delivered at: Melbourne

Delivered on: 23 December 2011

REPRESENTATION

Counsel for the Applicant: Mr Wood

Solicitors for the Applicant: Victoria Legal Aid

Counsel for the Respondents: Mr Horan

Solicitors for the Respondents: Sparke Helmore

THE COURT DECLARES THAT

1. In recommending to the first respondent that the applicant was not recognised as a person to whom Australian has protection obligations, the second respondent made an error of law, in that the second respondent failed to afford the applicant procedural fairness by failing to deal with the claim made by the applicant that the state is unwilling to provide him with protection because he is of Hazara race and/or Shia religion.

THE COURT ORDERS THAT

1. The application for an injunction is dismissed.

2. An extension of time is granted until 28 July 2011 for filing the application for judicial review herein.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT MELBOURNE

MLG 1109 of 2011

MZYPG

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

SUE ZELINKA IN HER CAPACITY AS INDEPENDENT MERITS REVIEWER

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for judicial review and declaratory and injunctive relief in relation to a recommendation made by an Independent Merits Reviewer (“IMR”), that the applicant not be recognised as a person to whom Australia has protection obligations under the Refugees Convention.

2. The applicant is an Afghan of Hazara ethnicity and Muslim Shia religion. He arrived at Christmas Island on 28 March 2010 (CB 31). He requested a Refugee Status Assessment (“RSA”). On 30 June 2010, the RSA found that the applicant was not a person to whom Australia owed protection obligations. On 20 July 2010, the applicant sought an Independent Merits Review Assessment (“IMRA”). That assessment dated 30 March 2011, was adverse to the applicant.

3. The applicant filed an application for judicial review in this Court on 28 July 2011, and an amended application on 30 November 2011.

   
   

   At the hearing before the Court on 8 December 2011Mr Wood of Counsel appeared for the applicant and Mr Horan of Counsel for the respondent.

4. Section 477 of the Migration Act 1958 (the “Act”) provides as follows:

   (1)An application to the Federal Magistrates Court for a remedy to be granted in exercise of the court’s original jurisdiction under section 476 in relation to a migration decision must be made to the court within 35 days of the date of the migration decision.

   (2)The Federal Magistrates Court may, by order, extend that 35 day period as the Federal Magistrates Court considers appropriate if:

   (a)an application for that order has been made in writing to the Federal Magistrates Court specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and

   (b)the Federal Magistrates Court is satisfied that it is necessary in the interests of the administration of justice to make the order.

   (3)In this section:

   date of the migration decision means:

   (a)in the case of a migration decision made under subsection 43(1) of the Administrative Appeals Tribunal Act 1975—the date of the written decision under that subsection; or

   (b)in the case of a written migration decision made by the Migration Review Tribunal or the Refugee Review Tribunal—the date of the written statement under subsection 368(1) or 430(1); or

   (c)in the case of an oral migration decision made by the Migration Review Tribunal or the Refugee Review Tribunal—the date of the oral decision; or

   (d)in any other case—the date of the written notice of the decision or, if no such notice exists, the date that the Court considers appropriate.

   (4)For the purposes of subsection (1), the 35 day period begins to run despite a failure to comply with the requirements of any of the provisions mentioned in the definition of date of the migration decision in subsection (3).

   (5)To avoid doubt, for the purposes of subsection (1), the 35 day period begins to run irrespective of the validity of the migration decision.

5. The applicant had 35 days from the date of the written notice of the decision on 12 April 2011 (Court Book “CB” 171), to file his application for judicial review [s.477(3)(d)]. The application, therefore, had to be filed on or before 17 May 2011. The application was filed 10 weeks late on 28 July 2011. The applicant seeks an extension of time to file his application.

6. Section 477(2)(a) of the Act requires an applicant to specify why they consider that it is “necessary in the interests of the administration of justice” to make an order extending time. The applicant states that it is necessary… because “I am in an isolated detention centre with no access to legal advice”. The first respondent opposes an extension of time.

7. In order to decide whether it is “necessary in the interests of the administration of justice to extend time” the Court will consider whether the applicant has a satisfactory explanation; whether the first respondent has been prejudiced by the delay, and whether the merits of the application have reasonable prospects of success SZQFR v Minister for Immigration & Anor [2011] FMCA 785 at [25].

8. The letter of notification of the IMRA advised the applicant that he could seek judicial review and that he had “35 days from the date of the letter” to lodge his request. In an affidavit filed on 6 December 2011, Mr Stuart Webb states that the applicant is illiterate and that “he was also not able to use any other individual in the detention centre to advise him of the meaning the letter” [4].

9. Mr Webb states also that “some time after his (the applicant’s) decision was given to him he was given a series of telephone numbers by the case manager to use to get some advice about his further options. He called these numbers but did not get through” (Ibid [6]). This leaves the evidence in an unsatisfactory state; Evidence has not been provided for instance, on how many times the applicant tried each number; It may that he called them once.

10. Mr Webb states that Pamela Curr from the Asylum Seeker Resource Centre met with the applicant “sometime in June or July” and they completed a series of forms which the applicant believes “included an application to the Court”. The applicant told Mr Webb that he blames Ms Curr for the late filing of the application. However, when Ms Curr first contacted the applicant in June, the time for filing had already passed; blame therefore cannot be place on Ms Curr. Mr Wood conceded that the evidence about the reasons for the delay is not “impressive or detailed” (Transcript “T” p.13, l.33). Mr Horan did not submit that the reasons for delay are without substance.

11. The Court is not satisfied that the applicant has a satisfactory explanation for the delay. The Court finds that the respondent’s have not been prejudiced by the delay. The Court will consider next the merits of the amended application.

The Merits

1. The grounds and particulars in the amended application are as follows:

   (1)In making her recommendations to the Minister, the IMR failed to afford the Applicant procedural fairness.

   Particulars

   The IMR failed to address one of the claimed bases for the plaintiff’s fear of persecution, being that the Applicant would be at risk of serious harm in Afghanistan, and the Applicant had a well founded fear at risk of persecution for a Convention reason on the basis that the State would not enforce the law to protect him as he was a Hazara and a Shia.

   (2)In making her recommendation to the Minister, there was a constructive failure of the IMR to exercise her jurisdiction, in that she failed to deal with an integer of the Applicant’s claim to satisfy the criteria for a protection visa.

   Particulars

   (a)The Applicant’s submissions to the IMR made a claim that the Applicant would be at risk of serious harm in Afghanistan, and the Applicant had a well-founded hear at risk of persecution for a Convention reason on the basis that the State would not enforce the law to protect him as he was a Hazara and a Shia.

   (b)There was evidence before the IMR, which the IMR accepted, that the Applicant was at risk of serious harm in Afghanistan.

   (c)The IMR was required to consider whether the Applicant satisfied the criteria for a protection visa on the basis that the State would not enforce the law to protect him as he was a Hazara and a Shia.

Written Submissions for the Applicant

1. Mr Wood submits that the same complaint underlies both grounds in the application being that the applicant had a well founded fear that the state will not enforce the law to protect him, on the basis of his membership of a particular social group, being persons of his race (Hazara) and/or religion (Shia) either at all, or at least not to the same extent as it would if he was of a different race (Pashtun) and/or religion (Sunni).

2. The applicant seeks an extension of time in which the application to the Court is to be filed (see above).

3. Mr Wood submits that the IMR focused on whether the applicant suffered persecution at the hands of the Taliban due to his support of schools and education. The IMR found that the applicant was not persecuted for that reason (CB 189). The claim that the state is unable to enforce the law to protect him was dealt with by the IMR (CB 192.3 and .4).

4. Mr Wood submits that the IMR failed to deal with an integer of the applicant’s claims that:

   “… the deterioration of the security situation in Afghanistan, and the rising power of the Taliban, has led to a reduction in power of the national government, backed by the Hazara population, to protect religious minorities in Afghanistan”.

   The IMR found that generalised violence was not directed specifically to Hazaras and/or Shias (CB 192.9).

   The Court finds that that claim of failure to protect religious minorities was covered by the findings that:

   “The State has shown that it is unable to provide protection for its citizens from harm perpetrated by the Taliban” and that “the claimant cannot access effective State protection from the harm he fears”. (CB 192.3 – 192.4)

5. As held in Toro Martinez v Minister for Immigration and Citizenship [2009] FCA 528 per Rares J at [46]:

   The Tribunal is not required to address every piece of evidence before it, provided that it considers the intergers of the claim: Paul v Minister for Immigration and Multicultural Affairs [2001] FCA 1196; (2001) 113 FCR 396 at 342 [79] per Allsop J with whom Heerey J agreed. But as French, Sackville and Hely JJ observed in Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184 at [47]; (2003) 75 ALD 630 at 641 at [47] “the inference that the Tribunal had failed to consider an issue may be drawn from its failure expressly to deal with that issue in its reasons.” However, they said that where the reasons are otherwise comprehensive and the issue at least has been identified at some point the inference will not be drawn too readily and continued:

   “It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where, however, there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the tribunal’s review of the delegate’s decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked”.

6. It was unnecessary for the IMR to make a finding on this particular claim of failing to protect religious minorities as it was subsumed in a finding of greater generality: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184 at [47]; (2003) 75 ALD 630 at 641 at [47].

7. Mr Wood submits that the IMR failed to deal with an integer of the claim that:

   “[internally displace persons] in Afghanistan suffer from lack of access to basic services and legal protection mechanisms”.

   
   (CB 118).

   The Court notes that the passage on CB 118 continues by referring to:

   “lack of access to land, absence of livelihoods, additional risks due to the minority status… and political and ethnic dynamics in places of displacement”.

   The IMR dealt with the alleged absence of livelihoods in Kabul by noting that the applicant built a successful business in a shop in Quetta and found no reason why he could not do the same in Kabul (CB 193.3). No specific reference was required to the alleged “lack of access to land”. Lack of access to land is not an integer of the applicant’s claim, but merely a piece of evidence or an assertion, as to the difficulties that could be faced in Kabul.

8. The difficulties referred to, are contained in quotations from country information. It was for the IMR to choose which country information she relied on (NAHI post).

9. “Both the choice and the assessment of the weight of” country information is a matter for the RRT. “The Court cannot substitute its own view of the material, even if it had a different view from that reached by the Tribunal.” (NAHI post [13])

   “The Tribunal was not obliged to comment on every item of material before it, to the extent of saying why it rejected it, or attributed less weight to it than to another item” (NAHI post [14])

   “The Tribunal does not commit jurisdictional error when it prefers one body of country information over another.”

   NAHI v Minister for Immigration and Multicultural Affairs [2004] FCAFC 10 at [13-14] and affirmed by the Full Court in VQAB v Minister for Immigration and Multicultural Affairs [2004] FCAFC 104 at [26].

   The decision in NAHI is applicable to the IMR (Plaintiff M61/2010E post).

10. The applicant alleges “additional risks due to his minority status”. The IMR found that the Taliban had not targeted him in the past and will not target him (except perhaps in a specific geographic location) in the reasonably foreseeable future (CB 192.6).

    The IMR found that the risk could be avoided by relocation to Kabul.

    The alleged restricted access to protection mechanisms was dealt with as the IMR found that the security situation in Kabul is not optimal but that “generalised violence is not directed at Hazaras and/or Shias” (CB 192.9).

    It is alleged that the IMR did not deal with political and ethnic dynamics in places of displacement. However the IMR dealt with “the religious and linguistic framework of Shia Muslims and Hazara speakers in Kabul, in which the applicant can live and worship” (CB 192.9).

    The Court finds that the various issues (raised at CB 118.3 and set out above) were dealt with by the IMR.

11. Mr Wood submits that attacks on Hazaras “derive from their ethnic and religious identity”. However, the IMR found that generalised violence is not directed as Hazaras and/or Shias. The finding that the security situation in Kabul is not optimal (CB 192.9) and that ‘independent evidence indicates that this is generalised violence and not directed specifically against Hazaras and/or Shias” encompasses a finding that the security situation in Kabul is such that there is no violence directed specifically against Hazaras and/or Shias. The IMR found that “Kabul has a large Hazara population – perhaps 1 million people, a quarter of the city” (CB 192.9) which “provides a religious and linguistic framework of Shia Muslims and Hazara speakers within which the complainant can live and worship”.

12. Mr Wood submits that the applicant is “in relatively the same situation as was the applicant in MZYLR v Minister for Immigration & Anor [2011] FMCA 633 per FM Riley”. Having read that decision the Court finds that the facts are not the same. In MZYLR the applicant was a motor mechanic who the Taliban had found had done work for an NGO (Non Government Organisation). The Taliban stated that if they “found the applicant they would kill him”. It is clear that the Taliban were targeting the applicant for doing work for an NGO; that does not apply in the present case. In MZYLR the IMR found that the applicant did not face a real chance of persecution for reason of his Hazara race or Shiite religion. The applicant did not challenge these findings but submitted that if he was at such risk, the state would withhold protection by reason of his Hazara ethnicity and Shiite religion. It was alleged that the police failed to enforce the law where Hazara Shias were the victims of crime.

13. The facts in MZYLR are very different from those in the present case.

    The facts in MZYLR are distinguishable from this case although similar principles of law will be applied.

Oral Submissions for the Applicant

1. Mr Wood submits that the applicant makes a number of claims that coalesce into a claim that the state is unwilling to protect the applicant on the basis that he is a Hazara of Shia religion (T p.3, l.44). Mr Wood submits that the distinction between the state being “unable” to protect and “unwilling” to protect is important. Mr Wood concedes that the IMR addressed the claim that the state was “unable to protect the applicant” and that is not the subject of the application for judicial review (T p.4, l.9).

2. Mr Wood submits that a failure to deal with an integer of a claim made by an applicant amounts to a failure to afford procedural fairness. The Court agrees.

1. Mr Wood referred to the decision in MZYLR (supra) including that a failure to address a claimed basis for persecution (that the state is unwilling or unable to protect the applicant… for a Convention reason), is a denial of procedural fairness [9].

2. Mr Wood referred also to the finding at [41] that the failure to deal with an integer of the applicant’s case, is (what Mr Wood characterises as) a constructive failure to exercise jurisdiction. In MZYLR, Her Honour decided that it was not necessary to decide whether that would be a proper ground for relief, as a “failure to consider a claim is clearly a denial of procedural fairness, and a proper foundation for relief” [42]. Mr Wood submitted that in this case it is not necessary to consider the second ground (T p.10, l.35), and the Court will not consider it.

Extension of Time

1. Mr Wood referred to the decision in SZNZI v Minister for Immigration & Anor [2010] FMCA 57 at [11] where Smith FM decided that the critical issues are the merits of the substantive application and the reasonableness of the explanation for delay.

2. Mr Wood referred to the decision in Manoher v Minister for Immigration, Local Government and Ethnic Affairs (No.2)(1991) 24 ALD 410 where Justice Lee decided at p.411 that:

   “Although the delay of 6 months is long, it is not so inordinate as to indicate that the applicant has not been concerned with timely review”.

   At p.912 His Honour decided that:

   “It is also a relevant consideration that the applicant had been in custody at all material times and denied the degree of access to advice in the conduct of his affairs that would be available to an ordinary citizen”.

3. In the present case, as found above, there is no evidence about the extent of the efforts made by the applicant to seek legal advice.

4. Mr Wood referred to the decision in Plaintiff M61/2010E v Commonwealth of Australia; Plaintiff M69 of 2010 v Commonwealth of Australia (2010) 272 ALR 14 where at [84] the Court held that the IMR “did not examine, and did not refer in his reasons to the second claim”.

5. The Court decided at [90]:

   Second, failing to address one of the claimed bases for the plaintiff’s fear of persecution meant that the minister was not informed about a matter that bore upon the question that the minister had asked to be considered: whether Australia owed the plaintiff protection obligations. The failure to deal with the claim was a denial of procedural fairness

6. Mr Wood submits that the IMR validly held that the applicant “didn’t have a well found fear of persecution from the Taliban”, but that “there is a real chance that serious harm may befall the applicant at the hands of the Taliban if he were to return to Jaghore” (CB 192.3).

7. Mr Wood submits that the applicant is not attacking the IMR’s conclusion “that it would not be unreasonable for the applicant to relocate to Kabul”.

8. Mr Wood submits that the applicant made a claim that one of the bases for his fear of returning to Afghanistan, and to Kabul in particular, was that the State of Afghanistan would not enforce the law to protect him on the basis of his race and/or religion, either at all or not with the same vigour as it would to protect persons of other races and religions.

9. Mr Wood referred to the decision in Minister for Immigration and Multicultural Affairs v Khawar and Others [2002] 210 CLR 1 per Gleeson CJ and Kirby J at [120] that the conduct of a non state agent may give rise to a Convention nexus where the state withholds protection to which the victim is entitled, if either the initial conduct or the failure to protect is motivated by a Convention purpose.

10. Mr Wood submits that “a failure to afford procedural fairness by failing to consider an integer of the applicant’s claim, and/or a constructive failure to exercise jurisdiction (being to consider all the applicant’s claims that are truly made…) is the issue and the only issue” (T p.19, l.13) in this matter.

11. Mr Wood submits that the claim that the state would no provide protection on the basis of the applicant being of Hazara race and/or Shia religion was made when passages on the following pages are “looked at cumulatively”:

    At CB 107.1

    “The deterioration of the security situation in Afghanistan, and the rising power of the Taliban, has led to a reduction in the power of the national government, backed by the Hazara population, to protect religious minorities in Afghanistan. This growing insecurity has also allowed extremist groups, such as the Taliban and other Pashtun extremists, to persecute and harass Shi’a Hazaras in Afghanistan.”

    At CB 118.3

    “IDP’s in Afghanistan suffer from lack of access to basic services and legal protection mechanisms, including lack of access to land (repossession of land and landlessness), absence of livelihoods, additional risks due to the minority status of some and political and ethnic dynamics in places of displacement.”

    At CB 167.9

    “These attacks are not mere ‘generalised violence’. They are targeted against Hazaras as a result of their prolonged marginalisation (during centuries of oppression, culminating in Taliban rule and present inability) and subsequent inability, owing to the weakness of the central government and pervasive discrimination within Afghanistan society, to access protection. Even if the motives for attacks in general are mercenary or for the personal self-advantage  of attacks, the motivation for attacks on Hazaras derive from their ethnic and religious identity (as per the decision of Burchett J in Ram); that it to say, they are attacked because, as Hazaras, they are vulnerable, unable to access protection….”

    At CB 168.3

    “Although our submissions in this respect are primarily with regards to the Convention-related targeting of Hazaras for criminal harm (with their ethnicity serving as the essential and significant reason why Hazaras are targeted, insofar as it gives rise to their vulnerability to such conduct), it is also our submission that, given the information provided above on ongoing discrimination against Hazaras within Afghanistan, they may be unable to access state protection due to discrimination against the Hazara population on grounds of ethnicity and religion.”

    At CB 168.9

    “As such, it is our submission, in light of the evidence provided indicating the inability or unwillingness of the government to protect Hazaras, and the anti-Hazara attitudes demonstrated by Pashtuns in general, that criminal violence against Hazaras is best understood as targeting of Hazaras, due substantially to their Convention-related characteristics (ethnicity and religion), for serious harm, even if personal advantage is an additional motive. Even if such attacks would be mere ‘generalised violence’ or ‘criminal activity’ if committed against Pashtuns, equivalent attacks, mounted against Hazaras, are reasonably capable of interpretation as deliberate attempts to exploit the vulnerability, and lack of protection, of the Hazara population.”

12. The Court finds that, read cumulatively or individually, the applicant’s claims before the IMR included the claim that he would be unable to access state protection because the state would be unwilling to protect him because of his ethnicity and religion.

13. Mr Wood submits that the IMR did not deal with the claim that the state would selectively refuse to enforce the law (T p.23, l.5).

14. Mr Wood submits that the IMR’s rejection of the applicant’s past persecution is not relevant is assessing whether the applicant may suffer persecution in the future.

15. Mr Wood referred again to the decision in Khawar (supra) and to the passage at [31] that:

    Where persecution consists of two elements, the criminal conduct of private citizens, and the toleration or condonation of such conduct by 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.

16. Registrar Caporale ordered that on or before 27 October 2011 the applicant file and serve any written submissions, and the first respondent file written submissions by 17 November 2011. The applicant’s Outline of Submissions was not filed until 1 December 2011. The first respondent’s written submissions filed on 22 November 2011 were therefore prepared in the absence of the applicant’s submissions. For that reason the first respondent filed supplementary written submissions on 7 December 2011. Parties must be aware that when orders are made for the filing of documents those orders must be complied with.

First Respondent’s Written Submissions filed 22 November 2011

1. The first respondent opposes an extension of time on the basis that the application is not supported by evidence explaining the delay, and, showing why an extension is necessary in the interests of the administration of justice. The affidavit of Stuart Webb was not filed until 6 December 2011 and the shortfall of the content thereof has been addressed above.

2. The first respondent submits that the grounds for judicial review do not have sufficient prospects of success to warrant an extension of time.

Supplementary Written Submissions filed 7 December 2011

1. Mr Horan submits that the decision in MZYLR (supra) should be distinguished from the present case. The Court has found that the cases are to be distinguished.

2. Mr Horan submits that the claims that Hazaras were attacked, because as Hazaras, they are vulnerable (CB 167.9) was rejected by the IMR in finding that there is generalised violence in Kabul that is not directed specifically to Hazaras or Shia’s (CB 192.9). The Court accepts that submission.

3. Mr Horan submits that the applicant’s claims must be viewed in context. Mr Horan submits that the applicant did not claim in his statutory declaration, that the authorities were unwilling to provide protection or that they would collectively withhold protection for a Convention reason. Be that as it may, the Court has found that the claims before the IMR included a claim that the applicant would be unable to access state protection because of his ethnicity and religion.

Oral Submissions for the First Respondent

1. Mr Horan noted that in other similar cases an extension of time has been granted on the basis of similar explanations. The Court finds that the disclosure here that the applicant was supplied with telephone numbers to access legal advice, without any detail about attempts to access that advice distinguishes this case. Each explanation for delay must be considered by looking at the details of the explanation. As the Court comes to the decision that the grounds of the application have merit, there is no need to deal with this issue further, as the Court will exercise its discretion to grant an extension of time.

2. Mr Horan submits that the Minister makes two main points in response as to “why the IMR didn’t err by failing to address the claim in relation to selective denial of protection”:

   ·The first relates to “the factual substratum to enliven that claim”.

   ·The second relates to “whether or not, properly understood, that claim was raised in a way that required it to be addressed” (T p.31, l.31).

3. As to the “factual substratum to enliven the claims”, Mr Horan referred to the finding (at CB 192.9) that the security situation in Kabul is not optimal, and that independent evidence indicates that this is generalised violence and not directed specifically to Hazaras and/or Shia’s. Mr Horan submits that the factual substratum in MZYLR (supra) is different from here. That is so. However, the law which flows from the decision in Khawar (supra) is applied in MZYLR and will be applied here.

4. Mr Horan submits that “the claim (in MZYLR) that there was selective protection doesn’t sit very comfortable with the fact that all people are at risk”. Mr Horan submits that the facts in MZYLR do not dictate the same outcome in this case. The Court accepts that submission.

5. Mr Horan referred to the decision in Minister for Immigration and Multicultural Affairs v Haji Ibrahim (2000) 204 CLR 1 that “generalised violence is not usually regarded as, of itself, giving rise to Convention-based claims”. The Court accepts that generalised violence does not, without more, amount to Convention-based persecution.

6. Mr Horan then submits that on the evidence there is “no reason for any claim that all Hazaras in Kabul were more vulnerable to harm… because the state withheld protection from Hazaras on a discriminatory basis”.

7. However, the issues here are whether a claim of the state selectively withholding protection was made?, and if so, whether it was considered? The issue is not whether there was evidence to support a claim of selective withholding of protection. Having regard to the passages (at CB 168.3 and 168.9) the Court finds that the claim was made.

8. Mr Horan submits that the claim was covered by the finding that “generalised violence in Kabul was not directly specifically to Hazaras or Shia’s”. The Court does not accept that the finding covers the claim of the state selectively withholding protection.

9. Mr Horan submits that the applicant’s claims “must be viewed overall and in context”. Mr Horan submits that the applicant did not claim that “the authorities were unwilling to provide protection”. The Court rejects that submission (supra).

10. Mr Horan submits as to whether or not the claim was raised, that to the extent that it was raised, it was made by the submissions raised by the adviser (T p.34, l.22). Mr Horan submits that all the passages referred to by Mr Wood (supra) “don’t really mention unwillingness or selective withholding of protection at all”. The Court rejects that submission (CB 168.9).

11. Mr Horan then submitted that the issue of selective withholding of protection, if it arose, “arose in a relocation issue context”, and that distinguishes this case from MZYLR. As found above, the facts in MZYLR differ from those here; however the principle of law flowing from Khawar (supra) is applicable here.

The Grounds

1. The Court finds that the claim that the state would not enforce the law, or protect him, because he was a Hazara and Shia was not dealt with at CB 192.3 and 192.4. The IMR found that the applicant cannot access effective state protection from the harm he fears (CB 192.4), but that the risk of serious harm is confined geographically to the immediate area in Ghazni province, when travelling into or out of Jaghori. “Hence it is open to the applicant to relocate to another place in Afghanistan” (CB 192.5).

2. The IMR considered the factors relevant to the applicant being able to relocate to another place in Afghanistan (CB192.6) being, whether it is practicable in the particular circumstances of the applicant SZMCD v Minister for Immigration and Citizenship [2009] FCAFC 46. The IMR put to the applicant that he could relocate to Kabul (CB 192.6). The IMR rejected the applicant’s assertion that he would be in danger from the Taliban in Kabul. The IMR repeated her finding of fact that the Taliban have not targeted the applicant in the past, and will not target him (except perhaps in a specific geographic location) in the reasonably foreseeable future. Those findings of fact were open on the evidence and are not amenable to review.

3. In NAHI (supra), the Full Court of the Federal Court decided at [10] as follows:

   “In their written submissions, the appellants took exception to a number of findings of the Tribunal. In many cases, those exceptions were purely on the basis that the appellants disagree with the findings. In effect, the appellants sought to have the Court take a different view of various issues of fact from that taken by the Tribunal. To engage in fact-finding about the merits of the appellants’ case is no part of the function of the Court, whether at first instance or on appeal, in dealing with an application for relief under s.39B of the Judiciary Act. As Stone J said, Plaintiff S157 establishes that it is necessary for the appellants to show jurisdictional error on the part of the Tribunal, if they are to succeed. Whatever be the boundaries of jurisdictional error, they do not comprehend errors of fact as to merits of the case put to the Tribunal”.

4. “By s.420(2)(a) of the Migration Act, the Tribunal is not bound by the rules of evidence. By s.424(1), in conducting a review, the Tribunal may get any information that it considers relevant. There can be no objection in principle to the Tribunal relying on ‘country information’. The weight that it gives to such information is a matter for the Tribunal itself, as part of its fact-finding function. Such information as the Tribunal obtains for itself is not restricted to ‘guidance’, as the appellants submitted. It may be used to assess the credibility of a claim of a well-founded fear of persecution. It is not, as the first appellant submitted, an error of law, or a jurisdictional error, for the Tribunal to base a decision on ‘country information’ that is not true. The question of the accuracy of the ‘country information’ is one for the Tribunal, not for the Court. If the Court were to make its own assessment of the truth of ‘country information’, it would be engaging in merits review. The Court does not have power to do that”. NAHI Supra at [11].

   The Court finds that those principles apply to the IMRA (Plaintiff M61/2010E (post) at [91]).

5. As stated by the Federal Court of Australia in Lee vMinister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464 at [27]:

   “The Tribunal is entitled to accept or reject or give such weight to the evidence proffered as it thinks appropriate in all the circumstances”.

6. The Court refers to the decision of Collier J in SZINP v Minister for Immigration and Citizenship [2007] FCA 1747 at [26] as follows:

   “Decisions of the Tribunal are privative clause decisions and as such are not open to review on the facts: S157/2002 v Commonwealth (2003) 211 CLR 476. As is clear from such cases as Attorney-General (NSW) v Quin (1990) 170 CLR 1 and NAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 76 errors of fact do not give rise to jurisdictional errors”.

   And at [29]:

   “if the Tribunal made an error of fact, it is not a jurisdictional error if there is some evidence upon which the finding of fact could be made: Epenisa v Minister for Immigration and Multicultural Affairs [2007] FCA 80 at [36], Abebe v Commonwealth (1999) 197 CLR 510”.

7. A wrong finding of fact is not a jurisdictional error. Attorney General for the State of New South Wales v Quin (1990) 170 CLR 1 at 35-36 per Brennan J.

8. Relevant provisions of the Act and relevant case law are binding on the IMR (PlaintiffM61/2010E supra).

9. The factual issues the applicant seeks to agitate are no more than an impermissible attack on the factual findings of the IMR. The challenge is no more than an invitation to review the merits. The authorities make clear that the making of findings of fact is uniquely a matter for the decision maker. In SHJB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 134 FCR 43, the Full Court at [12] quoted a passage from the decision of Selway J at first instance, where His Honour had said:

   16 “I have considered all of the matters put to me.  The relevant principle is clear.  Notwithstanding whatever concerns I may have about the reasoning of the Tribunal in analysing the factual material before it, the assessments of the material was a matter for the Tribunal, not for this Court.  The appellant asked the Court to undertake a review on the merits of the decision of the Tribunal.  The Court has no jurisdiction to do so.  As it was put by Justice Kenny in a similar context in Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220 at [146]:

   “A tribunal such as the RRT does not commit an error of law merely because it adopts unsound or questionable reasoning.  See Minister for Immigration and Multicultural Affairs v Eshetu [(1999 197 CLR 611]…at paras 40, 44-45 per Gleeson CJ and McHugh J, 138 per Gummow J and cf para 159 per Hayne; Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 356 per Mason CJ with Brennan J at 365, Deane J at 369 and Toohey and Gaudron JJ at 387 agreed; Road Corporation v Dacakis [1995] 2 VR 508 at 517-520; Minister for Immigration and Affairs v Epeabaka (1999) 160 ALR 543 (FC)…agree with the remarks of Katz J in [Zuway v Minister for Immigration and Multicultural Affairs 160 ALR 391 at 399] that a search by the Court for objective cogency in the reasons of the RRT creates a real risk that the Court will substitute its own view of the merits of the case for that of the Tribunal”.

1. The IMR considered and rejected the applicant’s claim that he cannot relocate to Kabul because he and his family have a “village style life that would not adapt to a city environment”. In doing so, the IMR noted that the applicant and his family had lived in a large city, Quetta, since 2005 (CB 192.7).

2. As stated by the Federal Court of Australia in Lee (supra) at [27]:

   “The Tribunal is entitled to accept or reject or give such weight to the evidence proffered as it thinks appropriate in all the circumstances”.

3. The IMR considered the applicant’s submission that he had no relatives in Kabul, and noted that the applicant said that he would include his family in any relocation (CB 192.8).

4. The IMR noted that Kabul has a large Hazara population which provides “a religious and linguistic framework of Shia Muslims and Hazaraghi (sic “Hazaragi”) speakers within which the claimant can live and worship” (CB 192.9). That finding of fact was open on the evidence and is not amenable to review.

5. The IMR considered and rejected the other matters that the applicant’s agent submitted would prevent the applicant from relocating to Kabul (CB 192.10–193.5). The IMR found that the applicant was able to start a business in Quetta and build it successfully and could “see no reason why he could not do the same in Kabul with equal success” (CB 193.3). That finding of fact was open to the IMR and is not amenable to review.

6. The main basis for the IMR finding against the applicant is that she rejected much of the applicant’s evidence and many of his claims. It was open to the IMR to accept or reject the evidence proffered as she though appropriate in all the circumstances Lee (supra). The findings of fact are not amenable to review.

7. The IMR did not accept the applicant’s claim that he and his brother were detained and interrogated by the Taliban in 2004 because they were involved in a school construction project (CB 189.8). The IMR was entitled to reject that evidence Lee (supra).

8. The IMR was not satisfied that the applicant was a credible witness (CB 188.2) nor that his claims are truthful, and found that she could not place any weight on much of what the applicant had said (CB 191.5).

9. In W148/00A vMinister for Immigration and Multicultural Affairs (2001) 185 ALR 703, Tamberlin and R.D Nicholson JJ stated at [64]:

“The Tribunal decision turned on the question of credibility. A finding as to credibility is a finding of fact and, as the authorities indicate, a reviewing body must not set aside such a finding simply because it thinks that the probabilities of the case are against, or even strongly against, the finding. As the High Court stated in Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479; 112 ALR 641 at 646 per Brennan, Gaudron and McHugh JJ:

‘If the trial judge’s finding depends to any substantial degree on the credibility of the witness, the findings must stand unless it can be shown that the trial judge “has failed to use or has palpably misused his advantage” or has acted on evidence which was “inconsistent with facts incontrovertibly established by the evidence” or which was “glaringly improbable’.

See also Abalos v Australian Postal Commission (1990) 171 CLR 167 at 179; 96 ALR 354. “This latter case was concerned with the scope for review of a decision founded in part on demeanour where the court at first instance had an opportunity to observe witnesses and form an impression as to the reliability of evidence given in response to questioning. Often a conclusion as to the credibility of a witness will depend not only on the body language and general impression conveyed by a witness in the way in which questions are answered but also on a careful consideration of the factual background or available information, coupled with ordinary experience as to likely patterns of response. Such an impression cannot be communicated by consideration of the transcript alone”.

1. The Court does not find that the IMR has failed to use, or has palpably misused, her advantage, or that she has acted on evidence which was inconsistent with facts incontrovertibly established by the evidence or which was glaringly improbable or that the probabilities of the case are strongly against the findings rejecting the evidence of the applicant.

2. The Court refers to the following decisions:

   “The Tribunal’s conclusion that the Applicant was not credible and his claims untrue are findings of fact par excellence: If the primary decision-maker has stated that he or she does not believe a particular witness, no detailed reasons need to be given as to why that particular witness was not believed. The Tribunal must give the reasons for its decision, not the sub-set of reasons why it accepted or rejected individual pieces of evidence. In any event the reason for disbelief is apparent in this case from the use of the word “implausible”. The disbelief arose from the Tribunal’s view that it was inherently unlikely that the events had occurred as alleged. Re Minister for Immigration and Multicultural Affairs; ex parte Durairajasingham (2000) 168 ALR 407 McHugh J at [67]. So long as the Tribunal’s findings were open to it, no error is demonstrated: Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 (FC) at 558-559; W148/00A v Minister for Immigration and Multicultural Affairs (2001) 185 ALR 703 (FCA/FC) at [64-69] per Tamberlin and RD Nicholson JJ. The Tribunal’s findings were open for the reasons it gives. The Court cannot review the merits of the Tribunal’s decision: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272, and there is no error of law, in the Tribunal making a wrong finding of fact: Abebe v Commonwealth (1999) 197 CLR 510 at [137]”.

3. The Court adopts the following statement of the law:

   “Whilst a decision maker concerned to evaluate the credibility of the testimony of a person who claims to be a refugee in Australia will need to consider, and in many cases consider sympathetically, possible explanation for any delay in the making of claims, and for any evidentiary inconsistencies, there is not a rule that a decision maker may not reject an applicant’s testimony on credibility grounds unless there are no possible explanations for the delay or inconsistency (Taylor, “Informational Deficiencies Affecting Refugee Status Determinations”). Nor is there a rule that a decision maker must hold a “positive state of disbelief” before making an adverse credibility finding in a refugee case. The reference by Foster J, sitting as a member of the Full Federal Court in Guo’s case at 191, to a requirement for a “positive state of disbelief” was not directed to this issue of the determination of credibility, but rather to the question of when an adverse credibility finding will logically found a positive finding that a particular fact asserted by the witness does not exist”.

4. The Court repeats that:

   “The weight which is to be given to a relevant factor is a matter for the Tribunal, unless it can be said that the Tribunal’s decision is manifestly unreasonable” Tefonu Pty Limited v Insurance and Superannuation Commissioner (1993) 44 FCR 361.

   The decision must be so unreasonable “that no reasonable body could have come to it”: Ibid at [41].

   The Court does not make that finding in this case.

5. As stated by the Full Court of the Federal Court in Minister for Immigration and Citizenship v Applicant A125 of 2003 [2007] FCAFC 162 at [95]:

   “Plainly, the weight to be accorded to the applicant’s evidence was a matter for the RRT. It is not a matter for this Court”.

6. As stated by the Federal Court of Australia in Lee (supra) at [27]:

   “The Tribunal is entitled to accept or reject or give such weight to the evidence proffered as it thinks appropriate in all the circumstances”.

7. And at [29]:

   the weight given by the Tribunal to evidence before it, both oral and written evidence, is a matter for the Tribunal in its role as the arbiter of fact: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259.

8. The IMR found that the applicant had added details about his involvement in building a school as a way of bolstering him claims and that this was done to give his story a Convention nexus (CB 188.5). That finding of fact is not amenable to review.

9. The IMR found that the applicant’s claims were not consistent with independent country information about activities of the Taliban in 2004 (CB 188-189). “The Tribunal (here the IMR) does not commit jurisdictional error when it prefers one body of country information over another” NAHI (supra) at [14].

10. The IMR found the applicant’s account of his escape from the Taliban and his departure from Afghanistan to be implausible (CB 189.9-191.7).

11. The IMR was not satisfied that the applicant left Afghanistan because he had a well founded fear of persecution (CB 191.9).

12. The above findings of fact were open to the IMR on the material and are not amenable to review.

13. The Court finds merit in the ground in the amended application that a claim by the applicant was not dealt with by the IMR.

14. The Court makes an order extending the time for filing the application for judicial review as an extension of time is necessary in the interest of the administration of justice.

15. The claim of a constructive failure to exercise jurisdiction was not pressed.

16. The application for judicial review is upheld.

Declaration

1. In recommending to the first respondent that the applicant was not recognised as a person to whom Australian has protection obligations, the second respondent made an error of law, in that the second respondent failed to afford the applicant procedural fairness by failing to deal with the claim made by the applicant that the state is unwilling to provide him with protection because he is of Hazara race and/or Shia religion.

Injunction

1. There being no present threat to remove the applicant without a further assessment being undertaken, in which the law would be correctly applied and procedural fairness afforded, it is not now necessary to consider granting an injunction (Plaintiff M61/2010E supra at [8]).

I certify that the preceding ninety-seven (97) paragraphs are a true copy of the reasons for judgment of F. Turner FM

Date: 23 December 2011