MZYPX v Minister for Immigration
[2012] FMCA 115
•24 February 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZYPX v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 115 |
| MIGRATION – Judicial review of Independent Merits Review of refugee claims of offshore entry person – refugee claims of Afghan Hazara Shia – no error of law – procedural fairness afforded – proper consideration of relocation – application dismissed. |
| Migration Act 1958 (Cth), ss.5, 36(2) , 46A, 195A, 474(2), 476 1951 Convention Relating to the Status of Refugees 1967 Protocol Relating to the Status of Refugees |
| AZABN v Minister for Immigration and Citizenship & Anor [2011] FMCA 809 Plaintiff M61/2010E v Commonwealth of Australia and others Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 Randhawa v Minister for Immigration, Local Government & Ethnic Affairs (1994) 52 FCR 437 SZATV v Minister for Immigration and Citizenship & Anor (2007) 233 CLR 18 |
| Applicant: | MZYPX |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | DOMINIC LENNON IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER |
| File Number: | MLG 1151 of 2011 |
| Judgment of: | Hartnett FM |
| Hearing date: | 14 December 2011 |
| Delivered at: | Melbourne |
| Delivered on: | 24 February 2012 |
REPRESENTATION
| Counsel for the Applicant: | Ms Szydzik |
| Solicitors for the Applicant: | Victoria Legal Aid |
| Counsel for the Respondents: | Ms Burchell |
| Solicitors for the Respondents: | Sparke Helmore |
THE COURT ORDERS THAT:
The application is dismissed.
The applicant must pay the costs of the first respondent in the amount of $6,240.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 1151 of 2011
| MZYPX |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
And
| DOMINIC LENNON IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER |
Second Respondent
REASONS FOR JUDGMENT
This is an application for review of a decision of an Independent Merits Reviewer (“the Reviewer”) dated 12 July 2011 and sent to the applicant on 18 July 2011. The grounds of the application are set out in the further amended application filed 8 December 2011. They are as follows:
“(1) The Reviewer made errors of law in that he misconstrued or misapplied the relevant legal test.
Particulars
(a)The Reviewer misconstrued the test of whether the Applicant had a well-founded fear of persecution in his country of origin, namely:
(i) the Applicant claimed that he had a well-founded fear in respect of Afghanistan;
(ii) the Reviewer did not find that the Applicant’s well-founded fear of persecution was limited to Jaghori; and
(iii) nevertheless, the Reviewer incorrectly limited his initial enquiry to whether the Applicant had a well founded fear in Jaghori.
(b) The Reviewer wrongly applied the test of whether there was an appreciable risk of the occurrence of feared persecution in Kabul, namely:
(i) The Reviewer found that there was a real chance that a person who is identifiable as a “returnee from the West” would suffer persecution by reason of a Convention nexus;
(ii) the finding referred to in the preceding paragraph was not location-specific;
(iii) the Reviewer accepted that the applicant faced the risk identified in paragraph (i) above; and
(iv) in considering whether, objectively, there was no appreciable risk of the occurrence of feared persecution in Kabul, the Reviewer did not consider persecution arising from the Applicant being a person identifiable as a returnee from the West.
(c) The Reviewer wrongly applied the test of whether it was reasonable for the Applicant to relocate to Kabul by failing to consider the particular circumstances of the Applicant, namely:
(i) the accepted risk of persecution to the Applicant arising from the kidnapping incident;
(ii) the accepted risk of persecution to the Applicant arising from him being identifiable as a returnee from the West; and
(iii) the psychological impact on the Applicant of moving to Kabul.
(2) The Reviewer failed to observe the common law rules of procedural fairness.
Particulars
(a) The Reviewer failed to address integers of the Applicant’s claims when making the assessment of whether it was reasonable for the applicant to relocate to Kabul, namely:
(i) the Reviewer did not consider the fact that the Applicant was at risk of persecution because he was a returnee from the West when determining the risk to the Applicant of persecution in Kabul; and
(ii) in considering whether it was reasonable for the Applicant to relocate to Kabul, the Reviewer did not consider any of the following factors when assessing the practical realities facing the applicant:
(a) the accepted risk of persecution to the Applicant arising from the kidnapping incident;
(b) the accepted risk of persecution to the Applicant arising from him being identifiable as a returnee from the West; and
(c) the psychological impact on the Applicant of moving to Kabul.”
The applicant is a citizen of Afghanistan. He was born on
31 December 1978 and is aged 33 years. His ethnicity is Hazara and his religion is Shia Muslim. The applicant’s wife, children and siblings remain in Afghanistan. The applicant lived in the Jaghori district of the Ghazni province of Afghanistan.
The applicant fled Afghanistan and arrived at Christmas Island by boat without valid travel documents. He was detained in the Christmas Island Immigration Detention Centre as an offshore entry person as defined by s.5 of the Migration Act 1958 (Cth) (“the Act”). He was first interviewed on 20 May 2010 for the purposes of determining whether he wished to claim asylum in Australia as a refugee within the meaning of the 1951 Convention Relating to the Status of Refugees, as amended by the 1967 Protocol Relating to the Status of Refugees (“Refugee Convention”). He lodged an application for a Refugee Status Assessment with the Department of Immigration and Citizenship (“the Department”) on 18 July 2010.
On 21 July 2010, the applicant was interviewed by an officer of the Department with the assistance of an interpreter in the Hazaragi language. His representative, Mr Michael Walker of Florin Burhala Lawyers, was also present. On 5 October 2011, the applicant was sent a copy of an assessment made by an officer of the Department who determined that the applicant was not a refugee as defined by the Refugee Convention.
The applicant’s representative Florin Burhala Lawyers then applied on the applicant’s behalf for an Independent Merits Review for review of the delegate’s decision. This application was made on 27 October 2011. Subsequently, the applicant’s legal advisers provided a draft written submission to the Reviewer. The applicant was interviewed by the Reviewer on 20 April 2011. The interview was conducted with the assistance of an interpreter in the Hazaragi and English languages. Also present was Ms Sandra Gould, the applicant’s agent.
The applicant claimed that he left Afghanistan because his brother who was a taxi driver between Jaghori and Kandahar had disappeared, and was last seen being taken by the Taliban. He claimed that he himself had been kidnapped by the Taliban, whom he claimed should he return to Afghanistan, wanted to kill him as he feared they believed he was supporting the US/Western forces. On the day of the kidnapping, the applicant was carrying NGO wheat, some bags having USA aid written on the side. He had picked the wheat up in Ghazni city and was on his way back to Jaghori on a concreted road with a driver. They had arrived at the Qarabagh area and had to slow down because a bridge had been destroyed. They were detoured by four armed Taliban and searched. The USA wheat bags were found and he was accused of carrying government material. His vehicle was burnt and he was blindfolded with his hands tied. The driver of the vehicle was released the next day but the applicant was detained for 13 or 14 nights.
He claimed to have been tortured each day for transporting government wheat. He claimed to have been beaten in the back to the point where he was urinating blood. He was able to escape from a toilet window. He hailed a car on the road and made his way home. This kidnapping incident made him decide to leave the country and he sold the family shop he was working in and used the proceeds to pay to people smugglers. He travelled to Kabul and then on to Australia.
Independent Merits Review
On 12 July 2011, and as notified to the applicant by letter dated 18 July 2011, the Reviewer recommended that the applicant not be recognised as a person to whom Australia had protection obligations under the Refugee Convention. In making his decision the Reviewer relied on the information provided by and on behalf of the applicant as well as his own research and country information and known to and/or put to the applicant. In respect of the applicant’s claims the Reviewer made the following findings as set out in paragraph 10 of the first respondent’s submissions:
“(a) He accepted that the applicant’s brother had been a taxi driver and that he had been taken by the Taliban given the country information which indicated that travel out of Jaghori was attended by risk of being taken by the Taliban.
(b) He accepted that the applicant had been kidnapped by the Taliban and that he was detained and abused for carrying material identified as government supplies.
(c) He accepted that carrying USA branded products may lead the Taliban to regard the applicant as a functionary of the pro-West state. Having regard to country information, the Taliban might impute the applicant with anti-Taliban views.
(d) Country information indicated that returnees from the West without a political profile may face theft and violence due to a perception that they have valuables rather than any political opinion attributed to them. There was no basis for finding that returnees from the West would be imputed with any political opinion by reason of being a returnee in Jaghori.
(e) Country information did not indicate that failed asylum seekers in Jaghori were labelled as spies nor were they imputed with liberal, pro-West anti-Taliban political opinion by reason of being a failed asylum seeker per se.
(f) He accepted that a person may face on Taliban controlled roads a real chance of persecution for holding or being perceived to hold anti-Taliban views. This could include assault, abduction or worse.
(g) The adverse impact of needing to avoid the Taliban controlled roads may deprive the applicant of the means of subsistence. The applicant faced a real chance of being persecuted by reason of pro-West and anti-Taliban political opinion imputed to him as a result of the kidnapping incident in needing to avoid Taliban controlled roads.
(h) He accepted that Hazaras may have been targeted for a non Convention reason or as part of the general insurgency including attacks on the roads. However, he was not satisfied that the country information supported the claims that the Taliban in Jaghori specifically targeted Hazaras.
(i) The International Religious Freedom Report corroborates the view that Shias are not targeted for persecution.
(j) The applicant might suffer persecution as a returnee from the West on the grounds of a particular social group however the Reviewer was of the view that he would not be denied state protection in Jaghori on a Convention ground.
(k) He did not accept that there was a real chance of persecution on the ground that the applicant would be identified as a failed asylum seeker.
(l) He did not accept that the kidnapping incident had given the applicant a profile in Kabul.
(m) He did not accept that the applicant would be traced over the kidnapping either at the point of registration or after having settled. The applicant’s problems were localised to the Taliban controlled roads if he resumed his work as a store keeper based in Jaghori and travelled those roads. He did not consider there was more than a remote chance that those Convention related problems extended to Kabul.
(n) Having regard to the applicant’s overall work and business experience… relocation by him and his family to Kabul would not be unreasonable.
(o) He acknowledged that the applicant could face some risk of violence and crime in Kabul, however, country information about the size, cohesive nature and growing power of the Hazara in Kabul indicated that the risk to his day to day well being would not be at a level where it would be unreasonable to expect him to live there.”
Legislative Framework
Christmas Island
is excised from the Australian migration zone.
As such, asylum seekers who arrive there by boat are characterised as offshore entry persons. Such persons are excluded from applying for protection visas via orthodox channels to enable them to remain in Australia pursuant to the provision of the Refugee Convention. However pursuant to s.46A(2) of the Act, the first respondent is granted a discretion to grant an offshore entry person such a visa if the Minister thinks that it is in the public interest to do so.
The Minister may also personally decide under s.195A(2) of the Act to grant the applicant a visa of a particular class if he thinks that it is in the public interest to do so.
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 applicant seeks judicial review of the decision of the Reviewer and contends that the second respondent fell into error to such an extent that he exceeded the jurisdiction conferred upon him, and accordingly his decision should be set aside and the Minister restrained from relying on it in any way. The grounds of the application are based on the applicant’s claim that the second respondent fell into jurisdictional error in considering the legal principles applicable to the determination of the issue of whether it was open to him (the applicant) to live in a part of Afghanistan other than Jaghori, particularly in Kabul. The principle of law is set out as follows:
“The principle of law which it is asserted the second respondent has misconstrued or misapplied can be summarised in the expression "the principle of internal relocation". More fully, a person, though found to have a well founded fear of persecution, as a result of his experience in one particular part of his country of origin, should nonetheless be excluded from refugee status, because by reference to other relevant circumstances, it would not be unreasonable to expect him to seek refuge in another part of the same country.” (AZABN v Minister for Immigration and Citizenship & Anor [2011] FMCA 809 at 24).
The relevant test is whether it is reasonable (in the sense of being practicable) for an applicant to relocate to a region where objectively there was no appreciable risk of the occurrence of the feared persecution (SZATV v Minister for Immigration and Citizenship & Anor (2007) 233 CLR 18 at 96). The High Court said further in SZATV v Minister for Immigration and Citizenship & Anor at 27:
“What is “reasonable”, in the sense of “practicable”, must depend upon the particular circumstances of the applicant for refugee status and the impact upon that person of relocation of the place of residence within the country of nationality.”
The extent of the Reviewer’s task in considering the practicality of relocation will largely be determined by the case sought to be made by the applicant (Randhawa v Minister for Immigration, Local Government & Ethnic Affairs (1994) 52 FCR 437). The applicant’s criticisms of the Reviewer’s relocation finding are:
(a) Failing to consider persecution arising from the applicant being a person identifiable as a returnee from the West
(b) Failing to take into account a number of factors in addressing the issue of reasonableness of relocation
(c) Failing to consider the psychological impact of moving to Kabul
(d) Unduly narrowing the inquiry as to whether the applicant faced a real chance of persecution in Jaghori followed by consideration of living in Kabul despite the applicant claiming that he had a well-founded fear in respect of Afghanistan. Further, the applicant contended that the Reviewer did not find that all of the applicant’s claimed bases of persecution were localised to Jaghori.
The Reviewer found the applicant to face a real chance of persecution for a Convention reason if he returned to his home region of the district of Jaghori and thus moved to a consideration of the issue of internal relocation within the country as he was obliged to do. The Reviewer was required to determine if it was reasonable (in the sense of being practically available to him) for the applicant to relocate to a safe area (SZATV v Minister for Immigration (2007) 233 CLR 18).
In determining whether or not it was practical for the applicant to relocate to Kabul, the Reviewer examined the particular circumstances of the applicant and the impact of the relocation of the applicant by reference to the matters specifically raised with the applicant and by the applicant (Randhawa v MILGEA [1994] 52 FCR 437 at 442 to 443; SZATV v the Minister for Immigration and Citizenship [2007] 233 CLR 18 at 24).
The Reviewer was not obliged to consider the issue of persecution arising from the applicant being a person identifiable as a returnee from the West. This integer was only relevant to a ground that the applicant might face a chance of serious harm by reason of his being a returnee from the West. The Reviewer properly dealt with the claim as being specific to Jaghori, the applicant’s home town. The Reviewer considered the question of relocation whether the applicant faced an appreciable risk of the occurrence of persecution by reason of his having a pro-West political opinion arising out of the kidnapping incident on Taliban-controlled roads in and out of Jaghori. The Reviewer found the applicant’s fear of harm was localised to Jaghori. In the alternative, the Reviewer found that the serious harm that arguably could occur on the basis of a particular social group as a returnee from the West was the fact that returnees were susceptible to robberies and assaults. In dealing with the issue of relocation, the Reviewer considered the issues of random violence in Kabul and the risk of violence and crime in Kabul. The Reviewer concluded that the applicant did not face a real chance of persecution for a Convention ground in Kabul.
The Reviewer considered a range of factors in his determination that it would be reasonable for the applicant to relocate to Kabul. These included country information indicating a large cohesive and supportive Hazara community in Kabul that had won 59 out of 249 seats at the 2010 elections, the ability of Shia Muslims to practise their religion freely, the crime rate and security situation, whether the applicant had a political profile in Kabul, whether the applicant had any relatives in Kabul, the standard of basic infrastructure, the applicant’s work history and experience, cultural and religious factors and the practical challenges of resettling a large family. The inquiry was not a narrow one and related to the objective impact of the possible relocation on this particular applicant. Absent any specific matters put by the applicant as to the psychological impact of such a move upon him, the Reviewer was not required mandatorily to consider such factor.
The Reviewer assessed Kabul in light of country information and the evidence before him and determined the applicant could relocate to Kabul and be safe from Convention related persecution. This was not, as claimed by the applicant an undue narrowing of the enquiry necessary. The Reviewer found the applicant to be protected in Afghanistan through internal relocation. This was because the critical claim made by the applicant was specific to the roads between Ghazni city and Jaghori. Significant country information also addressed this issue and was relied upon by the Reviewer. The real chance of harm on the basis of having a pro-West political opinion arising out of the kidnapping incident on Taliban-controlled roads in and out of the Jaghori district was not applicable to the whole of Afghanistan.
Counsel for the applicant submitted that the Reviewer should have assessed the feasibility of travel for the applicant and his family from Jaghori to Kabul. The respondent’s counsel submitted that the correct test as set out by the High Court in SZATV v Minister for Immigration (2007) 233 CLR 18 was applied with a reasonable level of specificity in response to the claims made by the applicant and on the evidence before him, as to whether it was reasonable, in the sense of practicable, for the applicant to relocate to Kabul. I accept the submission of the respondent’s counsel.
I find the Reviewer did correctly pose for himself a consideration of whether internal relocation to another place within Afghanistan was open to the applicant and considered the reasonableness of that, looking to the individual circumstances of the applicant, and with sufficient evidence available to him as to the ability of the applicant to reside within a significant Hazara population in Kabul. The findings of fact made by the Reviewer were open on the evidence before him. It is not this Court’s function to decide the merits of the applicant’s claims for itself. I am unable to find jurisdictional error affecting the Reviewer’s decision.
The application will be dismissed and costs should follow the event.
I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Hartnett FM
Date: 24 February 2012
0
7
3