MZYQU v Minister for Immigration
[2012] FMCA 247
•4 April 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZYQU v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 247 |
| MIGRATION – Application for review of Independent Merits Reviewer decision – assertion of jurisdictional error – grounds not made out – application dismissed. |
| Migration Act 1958, ss.91R, 91R(1)(b) |
| Plaintiff M61/2010E v Commonwealthof Australia (2010) 272 ALR 14 SZATV v Minister for Immigration and Citizenship [2007] HCA 40 Januzi v Secretary of State for the Home Department [2006] 2 AC 426 Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 |
| Applicant: | MZYQU |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | WILLIAM BLICK IN HIS ACACITY AS INDEPENDENT MERITS REVIEWER |
| File Number: | MLG 1260 of 2011 |
| Judgment of: | Burchardt FM |
| Hearing date: | 17 February 2012 |
| Date of Last Submission: | 20 February 2012 |
| Delivered at: | Melbourne |
| Delivered on: | 4 April 2012 |
REPRESENTATION
| Counsel for the Applicant: | Ms Baw |
| Solicitors for the Applicant: | Victoria Legal Aid |
| Counsel for the First Respondent: | Mr Reilly |
| Solicitors for the First Respondent: | Sparke Helmore Lawyers |
ORDERS
The application be dismissed.
The Applicant pay the First Respondent’s costs fixed in the sum of $6,240.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 1260 of 2011
| MZYQU |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| WILLIAM BLICK IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER |
Second Respondent
REASONS FOR JUDGMENT
The applicant seeks judicial review of the decision of an Independent Merits Reviewer (“Reviewer”) dated 3 August 2011. The applicant asserts that the Reviewer fell into reviewable error in four different ways itemised both in his amended application filed on 2 February 2012, and addressed more fully in the written outline of submissions filed on the same date.
The first respondent’s written and oral submissions take issue with each and every proposition advanced by the applicant and submit in particular that grounds 3 and 4 are merely matters of merits review.
For the reasons that follow, I have come to the conclusion that the first respondent’s submissions are generally to be preferred, and that the Reviewer did not fall into jurisdictional error in the manner indicated in Plaintiff M61/2010E v Commonwealthof Australia (2010) 272 ALR 14.
Agreed Facts
The applicant is a 33 year old male born in 1978 in Ghor, Afghanistan. He is a Hazara and Shia who fled to Iran from Afghanistan with his parents at the age of about 10 or 11. His understanding is that that was because of fighting between Pashtun and Hazara people.
The applicant lived in Iran for about 15 years but was forcibly deported with his extended family, his wife and children in 2004 to Afghanistan. The family had travelled to Kandahar because the applicant’s father had decided that they should try to live in Kabul. During this journey the transport was attacked by gunfire killing the applicant’s father, mother, younger brother and sister.
Thereafter, the applicant decided to take his family to Quetta in Pakistan and found work as a tailor (this being the profession he had practised in Iran also). The applicant’s wife and four children remain in Pakistan as does his brother, his brother’s wife and four dependent children. The applicant left Pakistan because of persecution in the form of violent attacks against Hazara Shia.
The applicant arrived by boat on Christmas Island on 15 April 2010, was assessed by an officer of the first respondent on 20 September 2010 and thereafter sought the review which gave rise to the decision from which this application has been brought.
It is appropriate to deal with the grounds advanced by the applicant in both written and oral submissions in turn.
Ground 1
The jurisdictional error in Ground 1 is asserted as:
“… by misdirecting himself or asking the wrong question when he made the finding that it would be reasonable for the applicant to relocate to Kabul in Afghanistan.:
The particulars supporting that assertion are:
“The IMR incorrectly relied on the criteria of s.91R of the Migration Act 1958 in applying the “relocation principle” in determining whether it was reasonable for the applicant to relocate to Kabul (contrary to SZATV v Minister for Immigration and Citizenship [2007] HCA 40 at [12] and [15].”
The applicant submitted that the decision of the High Court in SZATV v Minister for Immigration and Citizenship [2007] HCA 40 (“SZATV”) establishes that s.91R of the Migration Act 1958 (“the Act”) does not apply to the relocation principle and that it is the text of the Convention that is paramount. It was submitted that the findings of the Reviewer at paragraphs 83 and 84 of his decision (CB239) amounted to an erroneous importing of the criterion of serious harm described in s.91R(1)(b) of the Act to the consideration of the relocation principle. It is not necessary to set out the terms of the judgment in SZATV as counsel for the first respondent expressly conceded that the applicant’s contention in this regard was correct. It is clear from SZATV that s.91R does not apply to the relocation principle and that it is the text of the Convention definition that is paramount.
Nonetheless, what the Reviewer had to say about s.91R needs to be seen in context.
The passage dealing with relocation is set out at CB238 to CB240. It was at the core of the Reviewer’s decision.
The Reviewer at paragraph 78 said:
“Since I have accepted that the claimant cannot travel to his home location without a real chance of experiencing persecution, it is necessary to consider whether there is another location in Afghanistan to which he could reasonably locate and which would not expose him to the risk of persecution for a Convention reason.”
In SZATV the High Court, in explaining how the relocation principle is derived from the terms of the Convention, referred with approval to the judgment of Lord Bingham of Cornhill in Januzi v Secretary of State for the Home Department [2006] 2 AC 426 and the High Court said at [22]:
His Lordship, significantly both for Januzi and the present appeal to this Court, added:
“The corollary of this proposition, as is accepted, is that a person will be excluded from refugee status if under all the circumstances it will be reasonable to expect him to seek refuge in another part of the same country.”
The reasoning of the High Court in SZATV seems to me to adopt that last remark in particular.
The test as described by the Reviewer, paragraph 78, that I set out above in my view sufficiently accurately reproduces what the High Court said in SZATV. The question is whether the Reviewer applied it.
The first respondent submits that the reference to serious harm in s.91R at paragraph [93] of the Reviewer’s judgment is no more than a passing remark. I am not sure that that is necessarily quite correct. Nonetheless, in my opinion, for the Reviewer to be concerned with whether or not the applicant would face serious harm upon his return to Kabul was not an impermissible consideration of one of the matters that would go to whether or not it was reasonable in the sense of practicable for the applicant to relocate.
If one looks at paragraphs 88 to 90, what the Reviewer was concerned with was whether or not it was reasonable for the applicant to relocate to Kabul. The prospect of serious harm should he so return was plainly a relevant consideration.
It is equally clear that the Reviewer did not limit himself to that consideration. He set out at paragraph 88 a number of conclusions which dealt with every aspect of possible harm raised by the applicant.
In summary, I do not think that the Reviewer failed to apply SZATV and did not fall into error by the passing reference to s.91R.
Ground 2
Here it is claimed that the Reviewer fell into jurisdictional error by failing to deal with each and every integer of the applicant’s claim in determining whether the applicant could reasonably relocate to Kabul.
The particulars assert that the Reviewer misdirected himself or asked himself the wrong question in determining if there was no appreciable risk of the occurrence of the feared persecution in Kabul and further, that in determining whether it was reasonable for the applicant to be relocated to Kabul, the Reviewer failed to consider the applicant’s particular circumstances in the context of prospective relocation to Kabul and failed to consider the impact upon the applicant of return there. The applicant’s counsel set out paragraphs [23] and [24] of the decision of the High Court in SZATV which both parties accept define what is to be determined as to whether relocation is reasonable.
The criticism made of the Reviewer is that he found:
“There is little evidence as distinct from opinion to suggest they are generally persecuted in the sense of being subjected to serious harm because of their ethnicity or religion.”
It is submitted that the Reviewer’s conclusion is problematic, first because it applies the criterion of serious harm in an erroneous way (this being to an extent a repetition of Ground 1). Second it employs a false distinction between evidence and opinion because opinion evidence can be evidence. It is further submitted that the Reviewer did not apply additional aspects of the relocation test, namely failing to take into account the particular circumstances of the applicant, those being particularised at paragraph 28 of the applicant’s written submissions.
It is further submitted that a failure on the part of the Reviewer to address each of the individual matters raised in the context of practicability as part of the relocation test led to a failure to examine each integer of the applicant’s claim.
The difficulty with this submission, as counsel for the first respondent correctly submits, is that the matters raised by the applicant’s adviser’s submissions (CB151 to 154) were all paraphrased, in my view unobjectionably, by the Reviewer at CB234. They are again summarised at paragraphs 86 to 88. In my view, the Reviewer did not fail to analyse in sufficient detail each of the matters that the applicant advanced. He therefore did not fail to review each integer of the claim.
Furthermore, I do not think it can be fairly said, reading the decision as a whole, that the Reviewer failed to consider, to the extent that he was obliged to do so, the claims cumulatively.
Ground 3
Here what is alleged in substance is that the Reviewer failed to distinguish between the living, social and political conditions in Quetta and those in Kabul, whilst also ignoring the particular circumstances of the applicant.
If one looks at the Reviewer’s decision at paragraphs 88 to 90, what one sees in my view is that the Reviewer set out conclusions in paragraph 88 substantially favourable to the applicant’s case. He detailed the various matters that the applicant had raised as being likely to give rise to difficulty upon his return to Kabul were it to occur.
What the Reviewer said at paragraph 89, however, was this:
“None of these factors, however, detract from the facts that, as put to the claimant at the IMR interview, he lived in Quetta, a large town in a foreign country, for six years before coming to Australia; he worked there as a tailor, having also been a tailor for a number of years in Iran; and in addition to supporting himself and his family in Quetta, was able to save the considerable sum required to pay a people smuggler to come to Australia.”
The Reviewer then went on to conclude at paragraph 90 that:
“In my view this demonstrates that he is a resourceful individual. Although he might find life in Kabul difficult, the evidence does not satisfy me that the impact upon him would be such as to make relocation to Kabul unreasonable.”
The criticism made by the applicant’s written submissions is that there is no logical interconnection between the findings about life in Quetta and those in Kabul. But the Reviewer did not purport to find that life in Quetta was the same as life in Kabul. What the Reviewer found was that the applicant was a resourceful individual because he had been able to survive in Quetta, a finding that to my mind was entirely open to him and perfectly reasonable. To go on and then find that relocation to Kabul would be reasonable given this resourcefulness seems to me to be an entirely appropriate process of reasoning.
Ground 4
This ground was one of unreasonableness in the sense expounded in Wednesbury unreasonableness applied by the High Court in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611.
Regrettably for the applicant, I think that this matter can be dealt with shortly. For the reasons set out above I do not think that the conclusion of the Reviewer, that relocation to Kabul was reasonable, was one so irrational or illogical that no-one could reasonably reach it. As I have already indicated, I think that the Reviewer’s decision was a reasonable one. It necessarily follows that this ground is also not made out.
Conclusion
For the reasons above the application must be dismissed with costs.
I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Burchardt FM
Date: 4 April 2012
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