MZYPT v Minister for Immigration
[2012] FMCA 116
•24 February 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZYPT v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 116 |
| MIGRATION – Judicial review of Independent Merits Review – offshore entry person – applicant Hazara Shia Afghani – left Afghanistan some 10 years earlier and residing in Pakistan – no failure to afford procedural fairness – no jurisdictional error. |
| Migration Act 1958 (Cth), ss.5, 36(2), 46A(1), 195A, 474(1), 476 1951 Convention Relating to the Status of Refugees 1967 Protocol Relating to the Status of Refugees |
| AZABN v Minister for Immigration & Anor [2011] FMCA 809 Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) CLR 259 Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 Plaintiff M61/2010E v Commonwealth of Australia (2010) 272 ALR 14 Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 |
| Applicant: | MZYPT |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | DOMINIC LENNON IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER |
| File Number: | MLG 1148 of 2011 |
| Judgment of: | Hartnett FM |
| Hearing date: | 15 December 2011 |
| Delivered at: | Melbourne |
| Delivered on: | 24 February 2012 |
REPRESENTATION
| The Applicant: | In person |
| Counsel for the Respondents: | Mr Horan |
| Solicitors for the Respondents: | Sparke Helmore |
THE COURT ORDERS THAT:
The application filed 5 August 2011 is dismissed.
The applicant pay the costs of the first respondent fixed in the sum of $6,240.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 1148 of 2011
| MZYPT |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
And
| DOMINIC LENNON IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER |
Second Respondent
REASONS FOR JUDGMENT
The applicant filed his application for judicial review on 5 August 2011. The grounds of the application were stated as follows:
“1. The Independent Merits Reviewer (IMR) did not afford me procedural fairness.
2. The IMR applied the wrong legal test.”
The response of the first respondent was that the application for judicial review provided no particulars of any legal ground of review and further that the application did not establish any jurisdictional error in the decision of the Independent Merits Reviewer.
The decision of the Independent Merits Reviewer was made on 10 July 2011. It was notified to the applicant on 18 July 2011. It was that the applicant not be recognised as a person to whom Australia has protection obligations under the 1951 Convention relating to the Status of Refugees, as amended by the 1967 Protocol relating to the Status of Refugees. The application for review was filed within 35 days after the date on which the applicant received written notice of the decision and thus was within time.
The applicant is an offshore entry person (Migration Act 1958 (Cth) (“the Act”) at s.5), who arrived at Christmas Island, by boat, on
14 March 2010. He is an Afghan by nationality; of Hazara ethnicity and a Shia Muslim. He was born in Dharmada, Sange Mashe in the Ghazni Province. He left Afghanistan in 2000 and travelled to Pakistan where he resided until 2010 when he departed for Australia via Malaysia and Indonesia.Following his arrival and on 18 July 2010, the applicant lodged a request for a Refugee Status Assessment by officers of the Department for Immigration and Citizenship (“the Department”). On 1 November 2010, an officer of the Department determined that the applicant did not meet the definition of Refugee in article 1A of the Refugees Convention and was not someone to whom Australia owes protection obligations. On 5 November 2010, the applicant applied for the earlier mentioned Independent Merits Review of the Refugee Status Assessment.
This Court’s jurisdiction to deal with applications for judicial review in migration matters is contained in s.476 of the Act. Relief is available in this case only if jurisdictional error can be established (s.474(1) of the Act and Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 at 506-507). However, the decision in Plaintiff M61/2010E v Commonwealth of Australia (2010) 272 ALR 14 establishes that the Refugee Status Assessment and the Independent Merits Review processes (being steps taken by the Department towards the exercise of the statutory powers conferred on the Minister by ss.46A and 195A of the Act) must be procedurally fair – both in reasoning and in procedures followed – and must involve a correct application of the legal principles governing whether the criterion stated in s.36(2) of the Act is met.
The decision under review is that made 10 July 2011 by the second respondent. It is a ‘privative clause decision’ (Plaintiff M61/2010E v Commonwealth of Australia (2010) 272 ALR 14) being a decision of an administrative character made, proposed to be made or required to be made under the Act. The essential findings made by the second respondent are as set out in the first respondent’s written submissions and are as follows (at paragraph 5):
“5.1 Although the Reviewer identified several areas of potential concern about the applicant’s credibility, he proceeded on the basis that the applicant’s factual claims were credible – that, before he left Afghanistan in 2000, the applicant had been targeted by a neighbouring Pashtun landowner who had tried to force him to leave his land and had provided information to the Taliban.
5.2 The Reviewer found that the applicant would not face a real chance of persecution upon his return to Jaghori for reasons of his race (i.e. as a Hazara), having regard to country information and the changes in Afghanistan since the events which led to his departure.
5.3 The Reviewer also found that there was no real chance that the applicant would be persecuted for reasons of his Shia religion upon his return to Jaghori. The Reviewer was not satisfied that Shias were marginalised and targeted in Jaghori, or suffered any curtailment of their religious freedom.
5.4 Further, the Reviewer was not satisfied that the Taliban specifically targeted Hazara Shias on a systematic and discriminatory basis. The overwhelming weight of country information indicated that Hazara Shias did not face a real chance of persecution for reasons of their race or religion.
5.5 The Reviewer was prepared to accept that the applicant fell within a particular social group comprising ‘land-owning families’. However, as the applicant was a Hazara in a district governed by a Hazara party and overwhelmingly of Hazara ethnicity, the Reviewer did not accept that the applicant would be unable to access state protection against any persecutory behaviour. The applicant’s claim that he would be targeted as a former landowner in the future was remote and speculative.
5.6 The Reviewer was prepared to accept that the applicant fell within a particular social group comprising ‘returnees from the West’. The Reviewer accepted that there was a real chance that a person who was identifiable as a returnee from the West could suffer persecution (such as robbery and assault) for that reason. However, the Reviewer found that the applicant would be able to access state protection against any persecutory conduct.
5.7 The Reviewer was prepared to accept that the applicant fell within a particular social group comprising ‘failed asylum seekers’. However, the Reviewer did not accept that there was a real chance that a person in Jaghori who was identifiable as a failed asylum seeker would suffer persecution for that reason.
5.8 The Reviewer considered whether there was a risk of Convention-related harm in travelling on the roads in and out of Jaghori. The Reviewer found that such travel was dangerous for all ethnic groups, and that alternative travel routes were available.
5.9 Accordingly, the Reviewer found that there was no real chance that the applicant would be persecuted on the basis of his race, religion, membership of a particular social group or any other Convention reason if he returned to Jaghori in the reasonably foreseeable future.”
Consideration
In AZABN v Minister for Immigration & Anor [2011] FMCA 809, FM Brown said as to the legal principles to be applied in any judicial review of this type (at paragraph 86):
“An error which goes to the jurisdiction of an administrative body was described in these terms by the High Court in Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323):
What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it.”
And at paragraph 87:
“This hearing is directed towards the legality of the IMR’s decision not its merits. It is the role of the decision maker alone to make the necessary findings of fact on which his decision is predicated, from the evidence which was properly available to him. It is not the function of this court to substitute its own findings of fact in respect of that evidence (Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) CLR 259 at 272) ”
The applicant raised at the hearing before me the adequacy of State protection and referred to a December 2011 reporting of a suicide bomber detonating explosives at the entrance to a shrine in central Kabul where Shiite Muslims had gathered to mark Ashura. The applicant had earlier in his migration agent’s submission of May 2011, being post the Independent Merits Review hearing (but before the handing down of the decision) claimed that State protection on the whole was not available in Afghanistan. The Independent Merits Reviewer considered whether State protection was available and its adequacy and in that consideration canvassed, amongst other things, is the reported deaths of individual refugees who have returned to Afghanistan since 2002. The Independent Merits Reviewer also noted the increased Hazara involvement in politics and increased elected representatives in the national election in 2010 and referred to the significant number of Afgan refugees who have returned to Afghanistan since 2002. There was no Convention ground in relation to which the applicant would be denied State protection.
The Independent Merits Reviewer considered all of the applicant’s claims, both actual and potential and posing the correct questions, made findings available on the evidence before him including the country information before him, with respect to all such claims both individually and cumulatively. He canvassed the general body of country information which included ongoing episodes of violence. There is no basis for the unparticularised claim that the applicant was not afforded procedural fairness and nor can this Court find jurisdictional error in the decision of the Independent Merits Reviewer.
The application must be dismissed and a costs order follow the event.
I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Hartnett FM
Date: 24 February 2012
0
6
3