MZYPV v Minister for Immigration
[2011] FMCA 1022
•23 December 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZYPV v MINISTER FOR IMMIGRATION & ANOR | [2011] FMCA 1022 |
| MIGRATION – Review of decision of Independent Merits Reviewer – offshore entry person – Reviewer applied correct test – no jurisdictional error found – application dismissed. |
| Migration Act 1958 (Cth), ss.5(1), 36, 91R-91U, 477(1) 1951 Convention Relating to the Status of Refugees 1967 Protocol Relating to the Status of Refugees |
| Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 Minister for Immigration and Citizenship v SZMDS and Another (2010) 240 CLR 611 Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 Minister for Immigration and Multicultural Affairs v Rajalingam and Others [1999] FCR 719 Plaintiff M61/2010E v Commonwealth of Australia; Plaintiff M69 of 2010 v Commonwealth of Australia (2010) 85 ALJR 133 |
| Applicant: | MZYPV |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | LES BLACKLOW IN HIS CAPACITY AS AN INDEPENDENT MERITS REVIEWER |
| File Number: | MLG 1153 of 2011 |
| Judgment of: | Hartnett FM |
| Hearing date: | 17 November 2011 |
| Delivered at: | Melbourne |
| Delivered on: | 23 December 2011 |
REPRESENTATION
| Counsel for the Applicant: | Ms Szydzik |
| Solicitors for the Applicant: | Victoria Legal Aid |
| Counsel for the Respondents: | Mr Knowles |
| Solicitors for the Respondents: | Sparke Helmore Lawyers |
ORDERS:
The application for judicial review filed 5 August 2011 is dismissed.
The applicant pay the costs of the first respondent fixed in the sum of $6,240.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 1153 of 2011
| MZYPV |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
And
| LES BLACKLOW IN HIS CAPACITY AS AN INDEPENDENT MERITS REVIEWER |
Second Respondent
REASONS FOR JUDGMENT
The proceedings commenced with an application filed on 5 August 2011. Ultimately, the applicant relied upon a further amended application filed on 17 November 2011. The application itself was filed within the 35 days (of the date of the Independent Protection Assessment Reviewer’s (“Reviewer”) decision) time requirement as set out in s.477(1) of the Migration Act 1958 (Cth) (“the Act”).
The applicant seeks:
a)a declaration that the recommendation of the Reviewer was not made in accordance with law (and that jurisdictional error is established); and
b)an injunction restraining the first respondent from relying upon the recommendation of the Reviewer.
The grounds on which such orders are sought are as follows:
“1. The Reviewer incorrectly substituted a test of actual past persecution for the test required by the Convention
Particulars
a.The Applicant co-owned and operated a French bakery with his brother in Sang e-Masha, in Jaghori province. The customers of that bakery included Western NGOs.
b.The Reviewer accepted that the Applicant belonged to a class of persons, namely persons who were perceived as sympathetic to the government or Western forces, who were at ‘very high risk’ of persecution by the Taliban.
c.The Reviewer rejected the Applicant’s claim, however, on the basis that ‘no action was taken against’ the Applicant in the period 2007 – 2009.
d.In rejecting the Applicant’s claim on this basis, the IMR effectively substituted the test of actual past persecution for the forward looking test required by the Convention.
2. Further, or alternatively, the Reviewer failed to apply the Convention test by failing to consider the possibility that the Applicant’s brother might have been killed by the Taliban.
Particulars
a.The Applicant alleged that his brother had been killed by the Taliban on the road of Khandahar.
b.The IMR found that he ‘could not conclude’ that the brother’s death was attributable to the Taliban, but acknowledged that it occurred at a time when the Taliban were gaining influence in the area.
c.As the Reviewer was not certain that the brother’s death was not attributable to the Taliban, he was required by law to consider the possibility that the brother’s death was attributable to the Taliban in determining whether the Applicant had a well-founded fear of persecution.
3. Further, or alternatively, the Reviewer’s decision was not based on findings supported by logical evidence.
Particulars
a.As referred to above, the Reviewer rejected the Applicant’s claim on the basis that he had not been persecuted in the period 2007 – 2009.
b.The Reviewer inferred from the fact of non-persecution in this period that the Taliban did not wish to persecute the Applicant.
c.This inference was invalid as material before the Reviewer, and accepted by the Reviewer, made clear that the Taliban had a limited capacity to operate in Jaghori.
d.The absence of persecution was equally explicable by the Taliban being unable to persecute the Applicant as it was by the Taliban being uninterested in persecuting the Applicant.
e.Accordingly, there was no logical basis for inferring that the Taliban did not wish to persecute the Applicant.
f.Additionally, the Reviewer accepted that the Taliban was gaining influence in Jaghori in 2009. It is a necessary corollary of this finding that the Taliban’s ability to persecute people in Jaghori was increasing.
g.As such, it was not open to the Reviewer to infer purely from the absence of past persecution that no future persecution would occur, as the Reviewer had already accepted that the situation was changing.”
Chronology
The applicant is a citizen of Afghanistan. He is Hazara and a Shi’a Muslim. He was born and, until 2009, lived in Jaghori district in Ghazni province in Afghanistan.
The applicant left Afghanistan in 2009. He travelled to Pakistan, Malaysia and then Indonesia, where he later boarded a boat which was subsequently intercepted by the Australian Navy and taken to Christmas Island on 7 April 2010. Thus he is an “offshore entry person” as defined in s.5(1) of the Act with consequential processes applying to him.
On 10 May 2010, the applicant was interviewed at Christmas Island for the purpose of initial entry processing. At the interview, he claimed that he had left Afghanistan for the following reasons. He claimed to fear harm at the hands of the Taliban and Pashtuns because he was a Hazara Shi’a Muslim. He also claimed that he had owned and operated a bakery with his brother which supplied bread to, among others, employees of non-government organisations and of the Afghanistan government. He claimed that as a result, the Taliban threatened him because he was perceived as a supporter of foreigners and the government. He claimed that photographs of him and his brother had been supplied to the Taliban. He claimed that his brother had been killed by the Taliban. He claimed that, as a result of threats received from the Taliban, he had closed the bakery.
The applicant requested a Refugee Status Assessment (“RSA”) and was interviewed about his request on 9 July 2010. In support of his request, he supplied a written statement dated 6 July 2010. In this statement, he claimed that he and his brother had, for the purposes of obtaining supplies for the bakery, needed to travel outside of Jaghori district on a regular basis. He claimed that the roads outside this district were controlled by the Taliban.
On 26 July 2010, the applicant’s representatives lodged written submissions in support of his claims.
On 19 August 2010, an officer of the Department of Immigration and Citizenship issued an RSA record for the applicant. The officer found that the applicant was not a refugee.
On 31 August 2010, the applicant sought merits review of the RSA.
On 29 April 2011, the Reviewer interviewed the applicant.
On 19 May 2011, the applicant’s representatives lodged further written submissions as well as items of country information and other documents. On 8 July 2011, the applicant’s representatives lodged further country information.
On 26 July 2011, the Reviewer issued the Report, in which he recommended 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 (“Refugees Convention”) (and the 1967 Protocol Relating to the Status of Refugees (“Refugees Protocol”)).
In Plaintiff M61/2010E v Commonwealth of Australia; Plaintiff M69 of 2010 v Commonwealth of Australia (2010) 85 ALJR 133 (“Plaintiff M61”) the High Court of Australia held that decisions of an Independent Merits Reviewer were decisions that were capable of being the subject of judicial review under the Act in respect of which this Court has jurisdiction pursuant to s.476 of the Act. I note the conduct of both the processes of the RSA and the Reviewer are required to be procedurally fair and address the legal question or questions: Plaintiff M61.
The Reviewer’s Report
The Reviewer accepted that the applicant was a citizen of Afghanistan. The Reviewer also accepted that the applicant was a Shi’a Muslim and of Hazara ethnicity.
Having regard to relevant country information, the Reviewer accepted that there had been a deterioration in the security situation in Afghanistan since 2009. However, the Reviewer did not consider that this information supported a finding that there had been general and systematic persecution of Hazara Shi’a Muslims in Afghanistan. The Reviewer stated that (at paragraph 33):
“Other reports such as the 2010 Amnesty International Report and the US State Department reports … do not indicate that Hazara or Shia are groups generally subjected to persecution by reason of ethnicity or religion and it is not considered that those bodies, who can be expected to have quite different perspectives on the Afghanistan situation, would all fail to identify such targeted ethnic persecution were it generally widespread.”
The Reviewer did not therefore accept that a person’s identity as a Hazara Shi’a Muslim was “sufficient of itself” for such a person to fall within the terms of the Convention. He then went on to consider the other matters raised by the applicant including the claimed imputed political opinion.
The Reviewer accepted that the applicant had owned and operated with his brother a bakery in Afghanistan and this bakery had sold bread to non-government organisations, and that it had been widely known that the bakery sold bread to non-government organisations.
The Reviewer referred to the claimed death of the applicant’s brother who in 2009 went missing on the road between Sang-e Masha and Khandahar, and stated that he “could not conclude that the brother’s d[e]ath was known to be due to the Taliban” although accepted that “the Taliban had been gaining in influence, including in the Jaghori district” at that time.
The Reviewer noted that the Taliban had never visited the applicant’s bakery despite, according to the applicant’s claims, knowing where it was located. Likewise the Taliban had not visited his home at any time.
The Reviewer noted that, according to the applicant’s claims, the applicant had continued to operate the bakery for some five months after the death of his brother. The Reviewer found that this conduct suggested that the applicant had not acted consistently with being in fear of his life.
The Reviewer accepted that, in order to obtain supplies for the bakery the applicant had travelled outside Jaghori. The Reviewer found that, having regard to relevant country information, the road to Khandahar “has been and remains very dangerous for all travellers”. Nonetheless, the Reviewer noted that the applicant had travelled on these roads on many occasions without incident.
The Reviewer accepted that Afghans “run a very high risk of persecution from the Taliban if they are perceived as supporting the government or working directly or indirectly with foreign forces”. However, the Reviewer referred to and accepted the applicant’s claim that the bakery had been selling break to non-government organisations since 2007. The Reviewer stated that (at paragraph 48):
“… if that trade was seen as unacceptable to the Taliban, … it is not possible to reconcile this with the fact that no action had been taken against him at his bakery or at his home at any earlier time, noting again that activity had been continuing since 2007. The claimant put at the interview, that having produced and sold “western” goods to NGOs, one of which was directly involved in reconstruction efforts, the “damage” in a way had been done and could not effectively be remedied. However that was not accepted because, as stated above, the claimant had been selling his goods to NGOs without incident for many months from 2007 to 2009. In this particular aspect I note the RSA assessment record and conclude that the evidence suggests that the Taliban could not be taken to have had a real interest in him and hence I have concluded that there was no real chance of serious harm to him now or in the reasonably foreseeable future.”
Consideration
The Reviewer was aware of the correct test and applied that test to the applicant’s case. The Reviewer firstly set out the definition of ‘refugee’ in Article 1A(2) of the Refugees Convention. He noted that the assessment had to address whether the applicant met the criterion for a protection visa as set out in s.36(2) of the Act (whilst noting the claimant was not an applicant for a protection visa) with that question to be understood by reference to other relevant provisions of the Act, including ss.36(3)-(7), 91R-91U, and the decided court cases that bear upon those provisions. He noted whether the applicant was a ‘refugee’ was to be assessed “upon the facts as found when the assessment is made and requires a consideration of the circumstances in the reasonably foreseeable future.”
The Reviewer considered the decision of the High Court in Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 stating correctly as to the ‘real chance’ test
“A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.”
With these principles in mind and after a finding of facts open to him on the material before him the Reviewer concluded (at paragraph 46) the following:
“… I do not consider the claimant will face a real chance of serious harm for a convention reason now or in the reasonably foreseeable future if he were to return to Afghanistan.”
He then considered further factual findings open to him and formed a similar conclusion (paragraph 48).
As to the Reviewer’s findings about claimed incidents of past persecution such findings were apt and assisted the Reviewer to form an opinion about the chance of persecution in the reasonably foreseeable future as was submitted by Counsel for the first respondent who referred to the authority in Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 575 where Brennan CJ, Dawson, Toohey, McHugh and Gummow JJ said:
“In many, if not most cases, determining what is likely to occur in the future will require findings as to what has occurred in the past because what has occurred in the past is likely to be the most reliable guide as to what will happen in the future. It is therefore ordinarily an integral part of the process of making a determination concerning the chance of something occurring in the future that conclusions are formed concerning past events.”
Finally, I find as to this part of the applicant’s claim that the Reviewer did consider that aspect of the applicant’s claim which was that he had received threats from the Taliban but did not accept, for the reasons given, that any such threats posed a “…real chance of serious harm to him now or in the reasonably foreseeable future.”
I reject the argument put forward by the applicant in respect of the Reviewer’s findings as to the applicant’s brother. The Reviewer was not satisfied that the applicant’s brother had been killed by the Taliban for any Convention-related reason. On a fair reading of the Report as a whole it is clear that the Reviewer had no real doubt as to this finding. It is –
“[o]nly if a fair reading of the reasons allows the conclusion that the RRT had a real doubt that its findings on material questions of fact were correct, might error be revealed by the RRT’s failure to take account of the possibility that the alleged events might have occurred (or the possibility that an event said not to have occurred did not in fact occur). If the fair reading allows of such a conclusion, the failure to consider the possibilities might demonstrate that the RRT had not undertaken the required speculation about the chances of future persecution.”
(Minister for Immigration and Multicultural Affairs v Rajalingam and Others [1999] FCR 719)
No error is revealed in the Reviewer’s reasons.
The Reviewer’s decision is not affected by jurisdictional error. The final claim of the applicant that the Reviewer’s decision was ‘unreasonable’ or ‘illogical’ or ‘irrational’ is here simply disagreement with the merits of the reasoning.
“… the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.”
(Minister for Immigration and Citizenship v SZMDS and Another (2010) 240 CLR 611)
On the probative evidence before the Reviewer, a logical or rational decision maker could have come to the same conclusion as did the Reviewer. For the above reasons, the application is dismissed.
I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Hartnett FM
Date: 23 December 2011
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