MZYQZ v Minister for Immigration
[2012] FMCA 265
•13 April 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZYQZ v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 265 |
| MIGRATION – Application for judicial review of decision of Independent Merits Reviewer – alleged jurisdictional error – error not established – application dismissed. |
| Migration Act 1958 Federal Magistrates Act 1999, s.42 |
| Plaintiff M61/2010E v Commonwealth of Australia (2010) 272 ALR 14 SZQDZ v Minister for Immigration & Citizenship [2012] FCAFC 26 SZQFR v Minister for Immigration and Citizenship [2011] FMCA 785 NAOI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 383 |
| Applicant: | MZYQZ |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | JOHN BLOUNT IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER |
| File Number: | MLG 1254 of 2011 |
| Judgment of: | Burchardt FM |
| Hearing date: | 22 February 2012 |
| Date of Last Submission: | 2 April 2012 |
| Delivered at: | Melbourne |
| Delivered on: | 13 April 2012 |
REPRESENTATION
| Counsel for the Applicant: | Mr. P. Lithgow |
| Solicitors for the Applicant: | Maddocks Lawyers |
| Counsel for the Respondent: | Ms S. Burchell |
| Solicitors for the Respondent: | Sparke Helmore Lawyers |
ORDERS
The application be dismissed.
The applicant pay the first respondent’s costs fixed in the sum of $11,000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 1254 of 2011
| MZYQZ |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| JOHN BLOUNT IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER |
Second Respondent
REASONS FOR JUDGMENT
The applicant seeks declaratory relief in respect of a decision of an Independent Merits Reviewer (“Reviewer”) dated 2 June 2011. In that decision the Reviewer found that the applicant did not meet the criterion for a protection visa set out in the Migration Act 1958
(“the Act”).
The applicant has filed an amended application and asserts that the Reviewer fell into jurisdictional error in the sense indicated in Plaintiff M61/2010E v Commonwealth of Australia (2010) 272 ALR 14.
For the reasons that follow, I do not think that the criticisms made of the Reviewer’s decision are made out and it follows that the application must be dismissed.
It should be noted that an issue about an extension of time raised by the first respondent has been abandoned following the decision of the Full Court of the Federal Court in SZQDZ v Minister for Immigration & Citizenship [2012] FCAFC 26.
The Facts
Most of the factual material in this matter is not the subject of dispute. The applicant was born on 31 December 1989 in Jaghori, Gazhni Province, Afghanistan and is a Hazara Shia. He arrived in Australia as an offshore entry person on 31 March 2010.
The applicant’s various claims have been put in different fashion from time-to-time but for these purposes, I will deal with the claims in his amended application as they were articulated by counsel on his behalf before the Court.
Ground 1
This ground raises an alleged failure to deal with the applicant’s claim of risk of persecution as a member of a social group.
The applicant claimed that his claim to face persecution as a member of a social group namely, being a young man of military age without family at risk of forcible recruitment by the Taliban, was not dealt with as it should have been in the review. This was distinguished in the applicant’s submissions from his claims to fear persecution on the basis of his Hazara ethnicity, Shia religion and alleged political beliefs (being imputed from his father’s/family’s political opinion).
The applicant’s claim to fear persecution on the grounds of this social grouping is clear from Exhibit HRH-2 to the affidavit of Haroon Riaz Hussan filed on 6 February 2012. It constitutes a record of interview on 16 June 2010 with a DIAC officer, at which the applicant was represented.
Exhibit HRH-2
In the affidavit of Haroon Hassan, it was asserted at paragraph 6 that Exhibit HRH-2 was a record of interview between the DIAC officer and (the name of applicant) on 16 June 2010. During the currency of the hearing before the Court, I asked the parties if it was known whether that record had been before the Reviewer?
From correspondence forwarded by Messrs Maddocks to the Court dated 2 April 2012 and from what has been asserted to the Court uncontroversially on 7 April 2012, it is now clear that:
a)Exhibit HRH-2 was created by the applicant’s registered migration agent based on his contemporaneous notes taken at the RSA interview;
b)The RSA interview was itself tape recorded by officers of the first respondent;
c)No audio recording or transcript of the interview, whether prepared by agent or otherwise, was before the Reviewer;
d)The Reviewer did not have before him as part of the file at any stage the audio recording of the RSA interview or any contemporaneous notes that may have been taken by the RSA interviewer.
It is clear that the RSA record (CB115-131) did not address in terms the question of the applicant being a young man of military age without family at risk forcible recruitment by the Taliban.
Both in the letter from Maddocks to which I have referred and in oral submissions made by counsel on behalf of the applicant the point was pressed that the tape recording of the RSA interview was at all times in the possession of the first respondent and, to take the matter from the Maddocks letter:
“In our view, the fact that no record of the RSA interview was before the Second Respondent at any stage of the IMR process amounts to concession that the Second Respondent erred in law in that he failed to take into account matters at which he was bound to consider. In our respectful submission, if the Second Respondent did not consider any audio recording or transcript evidence the RSA interview, he cannot have properly considered the applicant’s claim.”
That submission arises out of what was said by the Reviewer at paragraph 4 of his decision (CB194):
“This independent review will consider afresh all claims for protection as they relate to the Refugees Convention, taking into account all available information, including information available to the refugee status assessment officer in reaching the unfavourable refugee status assessment, information provided by or on behalf of the claimant and any additional information the independent reviewer may consider relevant.”
There was some discussion before the Court as to whether this assertion gave rise to a further ground of application and counsel for the first respondent submitted that the applicant should be compelled to make such formal application and foreshadowed it would not be opposed. Counsel for the applicant said that the matter was more properly characterised as simply the articulation of the further particulars of the ground already advanced.
Bearing in mind the Court’s obligations pursuant to s.42 of the Federal Magistrates Act 1999, I simply dealt with the matter on the submissions made. It should be noted that counsel for the first respondent expressly declined an offer for an adjournment to consider her position further.
The claim put by the applicant in HRH-2, which I should note is accepted to be an accurate recording of the matters contained in it, was as follows:
“Summary of his claim, 21 year old man. Mother is deceased and father is missing. Elder brother is also missing and rest of his immediate family are either in Pakistan, Iran or England. His case is distinguished by many others before him because of his recent life in Afghanistan, only just leaving last year. He has provided two examples of how he was stopped on the road to Pakistan. He has provided the reasons and circumstances as to why he left Afghanistan with the taking of his father and his brother in Ghazni. He has answered your queries as to why he cannot return nor live in any part of the country. He has also provide you with the fact that he is fearful that he will be targeted by Taliban insurgents as a possible recruit, because of his age and the fact he has no mother and father left in his life. Being a young man, if he is returned to Afghanistan, he is still faced with this risk, which places him in a particular social group. …”
It is common cause that this ground was not dealt with in terms by the Reviewer and the applicant’s counsel submits that the failure to deal with this integer of the claim in the circumstances gives rise to jurisdictional error.
Counsel for the first respondent meets that criticism directly and submits that the Reviewer dealt with the claim as put. As put to the Reviewer, the claim was based on Hazara ethnicity and Shia religion and as a member of a particular social group namely, returnees from a western country. At CB195, the Reviewer paraphrased the matters put by the applicant on 19 April 2010 but does not appear to have included the social group of Taliban recruits.
In his statutory declaration filed on 13 June 2010, the applicant did not articulate this claim. Rather, he articulated the claim that if he returned to Afghanistan he would meet the same fate as his father and brother.
The material submitted to the Refugee Status Assessment (“RSA”) is paraphrased at paragraph 30 of the Reviewer’s decision (CB197) but it is clear that the transcript that constitutes Exhibit HRH-2 was not before the Reviewer. The RSA decision did not deal with this aspect now articulated.
The applicant was represented by the same agents, both before the RSA interviewer and the Reviewer. Indeed the applicant’s advisers presented written submissions and materials that run from CB140 - CB184. None of these repeat the claim about the social group of recruits to the Taliban.
The first respondent submits that the application has therefore been abandoned. In this regard reference was made to the decision of Cameron FM in SZQFR v Minister for Immigration and Citizenship [2011] FMCA 785 at [47]-[48] where his Honour said:
“47. When viewed as a whole, I conclude that the applicant’s claim as articulated to the Reviewer was based on his ethnicity, his religion, his perceived political views and possible perceptions of him were he to return to Afghanistan after a period abroad. Although the applicant’s adviser did initially raise with the assessor the question of the applicant’s youth and the Reviewer must be considered to have been aware that it had been advanced to that stage, it is apparent that to the extent that this was an integer of the applicant’s claims at the RSA stage, it was not subsequently so on review.
48. At all times the applicant was professionally represented and the fact that his youth was not raised at the review stage was not a case of an unrepresented applicant inadequately articulating his or her claims. It should be understood to represent a decision concerning what the applicant’s claims were and what claims were being pursued. In those circumstances, the omission from the further evidence and submissions on review of any reference to the applicant’s youth as an integer in his claims had the effect of abandoning it as an aspect of those claims. Consequently, the assertion that the applicant was at risk of harm from the Taliban because of his youth could not be said to have been, at the review stage, “a substantial, clearly articulated argument relying upon established facts” as considered in Dranichnikov or a claim which clearly emerged from the materials, in the sense discussed in NABE. As a result, the Reviewer was not required to consider it and no error on the Reviewer’s part has been demonstrated on that account.”
In my respectful view, his Honour’s analysis is correct and in the circumstances of this matter, the Reviewer was only required to deal with the claim as put to him. There was no jurisdictional error occasioned by the failure to address the abandoned claim.
The alternative ground arising from the failure to consider the audio tape
In view of the earlier matters detailed as to the existence of the audio tape the Court is required to consider whether the failure to have regard to it gives rise to jurisdictional error. The applicant contends that by virtue of the matters set out in paragraph 4 of the Reviewer’s decision this necessarily shows that the Reviewer did not properly fulfil his task.
Counsel for the first respondent submits that this is not the case and further relies again on the decision of this Court in SZQFR. Counsel submits that the claim was abandoned and points to the fact that the request for the independent review did not raise the failure of the RSA decision to deal with the claim now said to be overlooked. It is clear that the detailed matters set out by the applicant (CB138-139) in support of his application for review did not articulate the question of being recruited into the Taliban.
Counsel for the first respondent further submitted that in SZQFR the RSA claim was referred to in the RSA recommendation, pointing to the fact that this was not the case in this case, and said that accordingly the force of the decision of this Court in SZQFR is even stronger in this instance.
In my view, the Reviewer did not fall into jurisdictional error by failing to address a claim that the applicant, who was at all times represented, did not articulate before him. If either the recording and/or the transcript of the RSA hearing had been before the Reviewer, the Reviewer would, in the context of the way that the applicant put his case, still have been entirely entitled to assume that the claim about forced recruitment into the Taliban been abandoned in the sense described by Cameron FM in SZQFR.
Indeed in circumstances where one can only speculate as to the extent which the Reviewer would have been aware that a transcript had been taken of the RSA interview (a matter about which there is no evidence whatever before this Court) the assertion that the Reviewer fell into jurisdictional error by disregarding the existence of material of which the Reviewer was certainly not made aware by the applicant or the first respondent cannot be sustained.
Ground 2
This ground asserts in substance that the Reviewer failed to consider whether the applicant would be safe from persecution for reason of imputed political opinion in his own area in Jaghori if he did not travel in or through Qarabagh and in so doing failed to consider:
a)The proximity of the applicant’s home town of Qarabagh to the Jaghori-Gazhni Road and the Jaghori-Qarabagh Road;
b)The inaccessibility of other routes to Ghazni City and Kabul during the winter months; and
c)Whether the applicant’s personal circumstances would require him to travel regularly in order to maintain gainful employment.
In this regard, the applicant sought to rely upon various Google maps but since these were not before the Reviewer, in my view, they cannot be admitted before me. I am required to decide whether the Reviewer fell into jurisdictional error in the manner set out in M61/2010E, not to engage in merits review of that decision.
The Reviewer dealt with this aspect of the matter at paragraphs 76-86 of his decision (CB204-205). The Reviewer had accepted that the applicant’s father and brother had suffered ill treatment if not death as a result of an imputed political opinion namely, support for the government. The Reviewer accepted the applicant’s account of the fate of his father and brother (paragraph 78 at CB204).
The Reviewer thought that it was extremely unlikely that the Taliban, if they came across the applicant on the road, would recognise him as his father’s son. The Reviewer did find that there was some risk (a small but real chance) that he might come to harm by reason of an imputed political opinion should he return to Jaghori and travel regularly along the main route between the Jaghori and Ghazni City/Kabul through Qarabagh where the Taliban operate.
The Reviewer went on to say, however, at paragraphs 81-83 (CB205):
“81. However, the reviewer is not satisfied that there is any real chance that this would apply in any place where the claimant is not known or away from the particular route where his father was targeted. It is significant that a year after his father’s disappearance (by which time any dissemination of information about the claimant or alerts to other Taliban to apprehend him might be assumed to have occurred), the claimant was stopped and questioned twice by the Taliban along the main road in the other direction, towards Boldak, and was not detained or harmed once he had explained his business – even though those Taliban were specifically concerned with whether any of the travellers were involved with or working for the government. The reviewer is satisfied that this demonstrates that the feared specific targeted harm, if it exists, is localised to those Taliban in the area where his father disappeared.
82. The reviewer was not satisfied that the claimant would in fact need to travel regularly out of Jaghori to earn a livelihood. If the claimant returned to Jaghori, he would not be obliged to take up his father’s trade as a driver and therefore expose himself to regular risks on the road. There is no truck or remaining business to take over. The claimant has no previous experience or history as a driver. The claimant does have experience as a tiler and formerly assisted with his brother’s tiling business, working mainly in Jaghori. There is also a family farm in Jaghori, which is being cared for by a relative.
83. Further, should the claimant feel the need to travel between Jaghori and Ghazni city, or Kabul, he does not have to travel by the route through Qarabagh where the Taliban who presumably took his father operate, and who may just possibly by association wish to target the claimant himself. There are alternative routes.”
Having referred to travel information at paragraph 84, the Reviewer continued at paragraph 85:
“85. The reviewer is satisfied that notwithstanding the dangers of the Qarabagh route, there is a relatively safe route regularly used from Jaghori through Nawur and Jaghatu (both Hazara districts) to Ghazni city. The reviewer is satisfied that any real chance of persecution for this region is essentially limited to the road from Jaghori through Qarabagh. The reviewer is not satisfied that there is any real chance that the claimant would be targeted or persecuted within Jaghori district for this reason.”
It seems to me that those findings were findings well open to the Reviewer on the material that was before him. The Reviewer was keenly aware of the claimed fear of persecution and made findings, about it most particularly that it was limited to the Qarabagh route, and that there were alternatives. These were quintessentially fact-finding exercises for the Reviewer to undertake.
In the ultimate, I think that this ground of review is in essence merits review and is not permissible. Furthermore, even if it was, in my view the Reviewer’s decision is internally and logically sound and was clearly open to him on the materials as they were presented.
Ground 3
This ground asserts a failure to consider the applicant’s claims cumulatively.
I accept, as I understood counsel for the first respondent also to accept, that there may in certain circumstances be an obligation to consider whether a set of claims that do not individually give rise to a serious risk of persecution may nonetheless do so when taken together. To do so, the claims must be such as to be logically augmented by their accumulation.
The claims of Hazara ethnicity and shia religion plainly are capable of being cumulative but in the context of the case as it was put, there was no suggestion that the two factors gave rise to any additional cumulative effect. There is nothing in any event to suggest that the Reviewer failed to have proper regard to the interrelationship between these two factors.
The Reviewer dealt, in terms of which no exception is taken by the applicant, with his additional claim to fear persecution on the ground of being a person returning as a failed asylum seeker from overseas. Once again, there is nothing in the materials to suggest that this claim adds to the other claims in the sense of accumulation that I have discussed.
Furthermore, as the first respondent’s written submissions point out, the Reviewer was not obliged to consider the grounds cumulatively. As the first respondent’s written submissions assert, in NAOI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 383 at [21], Tamberlin J noted that:
“If the claims are rejected individually they do not gain any additional force by being considered together.”
In this case the nature of the claims is not such, in my view, to suggest that it was appropriate or necessary for the Reviewer, having dismissed each claim individually, to return to deal with it in some sort of additional global way.
Relocation
Neither party’s submissions took issue with the relocation findings of the Reviewer set out at paragraphs 92-94 of the decision (CB206-207). Although it was expressed under the heading “Relocation”, there has been no challenge by way of merits review to the finding of the Reviewer at paragraphs 93 & 94 that:
“93. The reviewer is satisfied that the claimant would be safe from such attention in his own area in Jaghori if he did not travel into or through Qarabagh and therefore is secure there in relation to the specific harm feared from the Taliban in Qarabagh. There is no fundamental factor which would make it unreasonable for the claimant to avoid the perceived risk of harm by not travelling into or through Qarabagh.
94. As the claimant does not have a well-founded fear of persecution in relation to his home district of Jaghori, it is not necessary to consider relocation elsewhere within Afghanistan.”
As I have already indicated in dealing with ground 2, the findings made by the Reviewer on this issue seem to me to have been well open to the Reviewer on the materials.
In my opinion the grounds advanced by the applicant cannot be sustained and the application must be dismissed with costs.
I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of Burchardt FM
Date: 13 April 2012
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