MZYRI v Minister for Immigration
[2012] FMCA 396
•30 April 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZYRI v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 396 |
| MIGRATION – Independent merits review – Afghani fearing persecution by reason of perceived religious and political opinions of applicant’s family – family land seized by local commander after villagers murdered the father – failure to address evidence of Convention reasons for persecution – error of law in analysis of reasons for persecution – failure to consider underlying reasons for commander’s actions – declaration of errors of law. |
| Migration Act 1958 (Cth), ss.36(2), 46A, 91R, 91R(1)(a), 476, 477 |
| Chen Shi Hai v Minister for Immigration & Multicultural Affairs (2000) 201 CLR 293 Dranichnikov v Minister for Immigration & Multicultural Affairs (2003) 197 ALR 389, [2003] HCA 26 Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 Minister for Immigration & Multicultural Affairs v Singh (2002) 209 CLR 533 NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No.2) (2004) 144 FCR 1, [2004] FCAFC 263 Plaintiff M61/2010E v Commonwealth of Australia; Plaintiff M69/2010 v Commonwealth of Australia (2010) 243 CLR 319 R v Immigration Appeal Tribunal; Ex parte Shah [1999] 2 AC 629 Rajaratnam v Minister for Immigration & Multicultural Affairs (2000) 62 ALD 73, [2000] FCA 1111 SHKB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 545 SZFZN v Minister for Immigration & Anor [2006] FMCA 1153 SZJRI v Minister for Immigration & Citizenship (2008) 103 ALD 176, [2008] FCA 1090 SZPZI v Minister for Immigration & Anor [2011] FMCA 530 SZQDZ v Minister for Immigration & Citizenship (2012) 286 ALR 331, [2012] FCAFC 26 SZQVI v Minister for Immigration & Anor [2012] FMCA 222 |
| Applicant: | MZYRI |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | W J BLICK, IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER |
| File Number: | MLG 1361 of 2011 |
| Judgment of: | Smith FM |
| Hearing date: | 30 April 2012 |
| Delivered at: | Sydney |
| Delivered on: | 30 April 2012 |
REPRESENTATION
| Counsel for the Applicant: | Mr D Joyce |
| Solicitors for the Applicant: | Allens Arthur Robinson |
| Counsel for the First Respondent: | Mr B D Kaplan |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
Declare that, in recommending to the first respondent that the applicant be not recognised as a person to whom Australia has protection obligations, the second respondent made errors of law.
Application otherwise dismissed.
The first respondent pay the applicant’s costs in the amount of $6,240.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
MLG 1361 of 2011
| MZYRI |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| W J BLICK, IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
The applicant arrived in Australia without a visa on an intercepted boat which was taken to Christmas Island in April 2010. On 8 July 2010, he requested an assessment by the Department of Immigration of his refugee status (the “RSA”), under procedures designed to assist the Minister to decide under s.46A of the Migration Act 1958 (Cth) whether he would allow the applicant to make an application for an onshore protection visa. On 27 September 2010, an officer of the Department of Immigration notified the applicant that she had decided that he was not a refugee as defined by the Refugees Convention.
Under the same procedures, the applicant applied for independent merits review (the “IMR”), which was performed by Mr Blick. Mr Blick conducted an interview with the applicant at Scherger Detention Centre on 13 May 2011, and wrote a report dated 2 September 2011 which was notified to the applicant on 5 September 2011. In his report, Mr Blick made a finding that the applicant “does not meet a criterion for a protection visa set out in s.36(2) of the Migration Act 1958”. He recommended that the applicant not be recognised as a person to whom Australia has protection obligations under the Refugees Convention.
Throughout the RSA and IMR proceedings, the applicant was assisted by migration agents at the Refugee Advice + Casework Service in Sydney. Last heard of, the applicant was held in immigration detention in Tasmania. The applicant has been assisted today by counsel instructed by Sydney solicitors, on whose application the matter was transferred from Melbourne. The process of transfer from Melbourne has led to some delays, but these do not need to be explored.
The Full Court has recently accepted that this Court’s jurisdiction under s.476 of the Migration Act extends to judicial review of an IMR report, and that time limits under s.477 do not apply (see SZQDZ v Minister for Immigration & Citizenship (2012) 286 ALR 331, [2012] FCAFC 26). Their Honours accepted that the jurisdiction is to be exercised in accordance with Plaintiff M61/2010E v Commonwealth of Australia; Plaintiff M69/2010 v Commonwealth of Australia (2010) 243 CLR 319.
Under Plaintiff M61, it is the function of the Court to consider whether Mr Blick’s report reveals any error of law, including denial of procedural fairness, in its reasoning or the procedures followed before its making. It is not the function of the Court to engage in merits review of Mr Blick’s findings, nor to form its own opinions on whether the applicant should be given permission to apply for a protection visa or any permission to reside in Australia.
When examining Mr Blick’s reasons for legal error, I consider that the Minister’s instructions as to the content of his report make it appropriate to examine the report on the same principles as would be a statement of reasons given by a migration tribunal (see SZPZI v Minister for Immigration & Anor [2011] FMCA 530 at [12]‑[13]). These principles include the obligation not to read Mr Blick’s statement of reasons “minutely and finely with an eye keenly attuned to the perception of error”, but to adopt a benign approach in attempting to understand ambiguity or poorly explained reasoning (see Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at pages 272 and 291). As I explained in SZPZI, the obligation on Mr Blick to include his material findings and reasons in his report, allows the Court to infer error of law from the omission of discussion of a significant or essential issue raised by s.36(2) of the Migration Act, although drawing that inference requires caution and careful examination of how the refugee claims were raised and responded to by the decision‑maker.
The Applicant’s Refugee Claims
The applicant’s refugee claims were presented from two angles by the applicant’s agents in their written and oral submissions in the course of the RSA and IMR procedures. The first canvassed well‑trod territory in relation to Afghani asylum seekers, by contending that the applicant would have a well‑founded fear of persecution if he returned to his country of nationality, Afghanistan, by reason only of his ethnic and religious background as a person of Hazara ethnicity and Shia Muslim religion. They also presented the applicant’s personal history before his arrival in Australia, as itself giving rise to separate or additional risks of persecution for a Convention reason.
The applicant’s personal history was explained shortly by him at his various interviews and, as will appear, it was essentially accepted by Mr Blick. Mr Blick made no findings adverse to the applicant’s credibility at all, and nor did the RSA assessor in the Department of Immigration.
The applicant was recorded as explaining his reasons for leaving his country of nationality, at his entry interview on 20 April 2010:
1.Why did you leave your country of nationality (country of residence)?
It was the time when the Taliban took over our area and the UN [illegible] came into our area. The UN were trying to assess the area as in roads and schools etc. When the UN came to the area they needed a guide so they asked my father. The locals accused my family of becoming infidels for helping the UN at that time people are very religious so anybody that helped others from other countries were considered infidels. The people believed my family were bringing foreigners into our area they killed my father after that they the locals said now we must kill the rest of the family for leaving their religion. My mother sent me to Iran with another family and that is how I got to Iran. I was so fearful of the people in my area even when I went to Iran I wouldn’t say where I was from. My brother went back to Afghanistan from Iran 7yrs ago (my brother was in Iran 2‑3yrs before I went) he was trying to get the rest of my family and move them to Iran but before he could do that he was killed we don’t know who did that it was a hit & run in a car. He was married his wife & children were in Afghanistan with my family. My mum’s sister then moved to Iran with another family travelled with another family. My younger brother lives with my sister in law in Afghanistan. 2yrs ago my sister in law remarried & is asking my mother to collect [my brother] & my brother’s children because her new husband doesn’t want to provide for them. Because of all of this I suffer from depression worry about my family I have spoken to a counsellor here in the centre. I live in fear in Iran because I was illegal that’s why I went to Turkey in 2007. I just want to find a safe place for my family that’s why I have come here. In Iran we lived in fear of being harassed & I have to find a way to get my brother from Afghanistan please accept me here so I can bring my family safely to A/a.
In response to the question, “22. Do you have any reasons for not wishing to return to your country of nationality (residence)?”, he is recorded as saying:
Because of all the things that have happened to me & my family in Afghanistan I can’t go back.
Q – What would happen if you went back to Afghanistan?
A – My life will be in danger & I will be killed.
Q – By who?
A – The same people that killed my father will kill me (see Q1 page 11). I fear those people in my area.
Q – What if you went to a different area?
A – I would still have fear.
Q – Why?
A – I don’t feel safe anywhere in Afghanistan that’s why I lived in Iran I fear for the way my brother & father were killed that I will be killed the same way.
Q – What about going back to Iran?
A – I can’t go back to Iran because I illegal. I don’t belong in Iran. I have no status.
Q – Anything else?
A – I want to see a doctor. I have a bad hernia & I’m depressed. I told Serco on the first day about the problem.
The applicant’s history was later recorded with the assistance of his agent in a short statement attached to his RSA application. This included:
1.I was born in [Province], [District], Afghanistan. I do not know the exact date of my birth but I believe I am about 27 years old.
2.I left Afghanistan about 12 years ago, when I was about 15 years old. My mother sent me to Iran with another family who was going. My mother sent me because she was worried about my safety.
3.I am a Hazara and Shi’a Muslim.
4.I fear that if I was forced to return to Afghanistan I would be at risk of being harmed because of what has happened to my father and brother in a dispute about land in my village. The authorities are unable and unwilling to protect us from this harm. I also fear persecution in Afghanistan if I were to return to any other place on the basis of my Hazara ethnicity and Shia religion.
My family background
5.Before coming to Australia, I lived with my mother and sister in Iran. I am also responsible for my younger brother and my deceased brother’s two children who are living in Afghanistan.
6.My family had land in [location] since many generations. We grew wheat, barley, corn. We also had almond trees. We made a living from that land until it was taken from us illegally and by force.
My religious belief
7.I am a Shi’a Muslim and my family and I practice the beliefs of our religion.
Why I left Afghanistan
8.Around 12 years ago, UN aid first came to our area bringing oil, lentils, and other food aid for the local people. No one would consume this aid because they said it was haram’ ‑ it was banned religiously. But my family consumed the food. The people in the village called us infidels because we were consuming food of the infidels. They came one day and attacked my father, they beat him to death. Other local people witnessed his beating but no one helped him. A few days later these same people came to our house and took the documents for our land. They said that we have no place in this area, and told us we cannot live here any more. These people were also Hazara, Shi’a people. I believe this was an excuse to take our land from us.
9.We went to the local district authorities, but they are very corrupt and no one helped us. I think that the people who attacked my family had connections with the local authorities at that time. I am not sure if they still do.
10.After this the family moved to my mother’s sister’s house. As I was the oldest male member of my family at this time my mother sent me to Iran because she was afraid of the people that killed my father. These people continued to threatened our family after the incident.
11.My mother arranged for me to go to Iran with another family. We travelled on the back of a “Kamaz truck” for 3 days to Ghazni . After Ghazni we went by van to Khandahar. In Khandahar with the help of a smuggler we were taken to [location] on the Pakistan border. We travelled from there by bus to [location]. After about a week we went, with the help of another smuggler, to Iran.
12.When I arrived in Iran I My older brother I went to look for my brother, who had been in Iran since 2 or 3 years. He had left Afghanistan earlier to look for work. When I found my brother I stayed with him.
13.I lived with my brother in Iran for 2 years. After 2 years, around 2000, my brother returned to Afghanistan to our [village]. He was returning to his wife and children.
14.My brother returned to Afghanistan to find who was responsible for killing of my father. Some 3 or 4 months after he returned he was killed. He was hit by a car when he was on his way home from the bazaar. We don’t know who was responsible for his death, but we believe it was the same people who killed my father, because my brother had returned to Afghanistan to find out who was responsible. He had made inquiries with the authorities about it.
15.About 4 years ago, my mother and sister, came to Iran. My brother’s wife, his children and my younger brother stayed back in Afghanistan. My other sister who was married, stayed in Afghanistan. It is very expensive to arrange a smuggler to come to Iran so my mother could not bring my brother with her.
16.My mother came to Iran because when could no longer cope with her life. She had lost her husband, her son and the local people were always harassing her in relation to this dispute about our land.
17.The area of [the village] is made up of all Hazara people, the governor at the time of the killing of my father was [G] who was also Hazara. After 2001, the central government put in place their own people. I don’t know the names of these people. My mother did not go to the authorities to seek protection because she was afraid for the safety of her children and grandchildren.
18.Our family cannot rely on the protection of the authorities because they are corrupt and unable to protect us. …
It is unnecessary to examine the reasoning of the Departmental assessor. In short, she appears to have accepted the applicant’s claimed history, and that they included Convention‑related claims as to the reasons for the past persecution of the applicant and his family, but she decided that he could return to live in Afghanistan in Kabul without encountering a risk of Convention‑related persecution.
This reasoning, and the RSA assessor’s reasoning which rejected a generic claim in relation to Shia Afghanis, was addressed by the applicant’s agents in their lengthy submissions to Mr Blick. The grounds which I shall address below do not require me to examine these submissions, nor Mr Blick’s eventual reasoning for rejecting the generic claim. They concern his reasoning when departing from the RSA assessment in relation to a Convention nexus for the harms suffered by the applicant and his family in their home village.
Mr Blick’s statement of reasons was expressed concisely, including his summary of his interview with the applicant. However, a transcript of the interview is in evidence and includes further evidence given by the applicant concerning the circumstances of his father’s death. This includes:
BB – IMR Reviewer
Applicant – Claimant
NK – Migration Agent
Interpreter
BB
… Okay. You have told of the reasons why you first left Afghanistan when local people killed your father and took your family’s land. In the first interview on 20 April 2010 you said that this was because your father acted as a guide for the United Nations. In your written statement of 8 July 2010 you said your family ate food provided by the UN that others said was not halal.
Interpreter
He is asking this is my interview? I said this is a repeat.
BB
Well, you may comment any time you wish.
Applicant
The United Nation help we brought it ... I give it to people and we used it too.
BB
I mentioned that in your first interview you said your father acted as a guide for the United Nations. Slow down.
Applicant
My father was a ... like, as a guide, and they told him ... he just start slowly and we are going to help you more and more and we are going to build these schools.
BB
I see. I see. Okay. So just to be clear, there were two things that happened. One was that your father agreed to act as a guide for the United Nations and the second was that your family ate food provided by the United Nations that the villagers considered was not halal.
Applicant
Yes, well, at the same time my father was giving away the food for the villagers but people was thinking that he is trying to bring Christian religion too.
BB
Do you have any more to say on that?
Applicant
Yes, the person which was there, had the power, he was fear that my father going to bring Christianity and bring a lot of changes in our village.
BB
Which person was this?
Applicant
The person was [C…], which is the commander of the area. [C…].
BB
This is the [Hazara] person you mentioned in your statement.
Applicant
Yes, he is a [Hazara] and he is a Mujahideen, from the old time.
BB
I see. At least I think I see. I apologise for going over this with you once more. Your father agreed to act as a guide for the United Nations?
Applicant
Yeah. He was agree to do that work for the people.
BB
Was he paid by the United Nations, do you know?
Applicant
Yes, he got paid.
BB
And I think you said that he delivered food and supplies to the members of the community, the village?
Applicant
It was some, like, cooking oil and that kind of things.
BB
Yes. Yes.
Applicant
And they brought it to give it to our villagers.
BB
I see. Now ... and the village, and the people in the village thought that your father was helping convert people to Christianity?
Applicant
Yeah, they were thinking that when the first time he is bringing food, the second time probably he will bring the different religion too.
BB
I see. Okay. Now, you also said that your family ate this food.
Applicant
Yup.
BB
And this food was considered not halal?
Applicant
Yes, we’re not sure what kind of food they are and it’s haram.
BB
Haram. At your first interview you said that the people in your village were very religious and anyone that helped others from other countries were considered infidels.
Applicant
Yes, the people is like ... doesn’t have a lot of education …
BB
Yes.
Applicant
... and that was the reason they were thinking of that.
BB
I see. I see.
NK
Can I just clarify one thing that the interpreter said the word ‘haram’, which sounds like halal but …
BB
No, I know what it ... I know what it means, yes. Thanks. Do you believe this attitude of the local people was an important reason for killing your father and threatening your brother?
Applicant
No it’s not a good reason for me, but it was a good reason for those people.
BB
This is the question I was asking. This is the question I was asking. It was an important reason for those people?
Applicant
Yes, it was a good reason for them.
BB
[Agrees]. Now, you’ve also said, however, that you thought ... excuse me one moment. At this time the people took your land away from you?
Applicant
The same person took our land.
BB
You also said in your earlier statement that you believed the concern about the food and about your father’s activities was an excuse.
Applicant
It was excuse for them, it just made excuse for them to kill my father then take our land.
BB
Who was this person?
Applicant
It is the same person, [C] which is a very powerful person and a lot of people working for him.
BB
The name of this person was ... could you repeat the name of the person, please?
Applicant
[C].
BB
[C]. This is not [the governor]?
Applicant
They were working together, [C] and the other person.
BB
Was [C] a person who lived in your village?
Applicant
Yep.
BB
He was?
Applicant
He was.
BB
And had he always been in your village?
Applicant
Always they lived there and he is still there.
BB
So he now has your family land?
Applicant
Yes.
BB
You said in your first ... in your written statement that your family had owned this land for generations.
Applicant
Yes.
BB
Was there any quarrel between your father and this person?
Applicant
I don’t have ... I don’t know that they had a problem or not.
BB
Apart from this man, were there other people who believed that your father’s assistance to the United Nations was wrong?
Applicant
Yes. The people was with him, they all were thinking.
BB
And those people had nothing to gain from your father losing his land?
Applicant
No. No, they got nothing, just the commander got the land.
(emphasis added)
Mr Blick’s questioning then turned to consider the further events in relation to the family, including the return and death of the applicant’s brother, and the subsequent actions of other members of his family.
Towards the end of the interview, the applicant returned to explain his fears in relation to the local commander by saying:
BB – IMR Reviewer
Applicant – Claimant
Applicant
It doesn’t matter where I go in [location], that person will find me.
BB
Okay. This person being who?
Applicant
[C…]
BB
And why would that be?
Applicant
Yes, he will have the fear that I would come back for my land and for revenge. But I’m just ... if I go there to live there, even I don’t care about the land and I don’t want to know a lot about how they killed my father, I just want to go for living there, but they will not give me a chance to live there.
BB
What about the people who believed that on religious grounds your father was not behaving correctly?
Applicant
That’s the people that he will use to find me and take me, or kill me.
(emphasis added)
Mr Blick’s Reasoning
In his report, Mr Blick summarised the evidence before him, including the applicant’s evidence at interview and the agent’s submissions. He made reference to parts of their submissions which identified country information which confirmed the existence of powerful local commanders, including those named by the applicant, “both of whom are powerful and influential Commanders in the [location] province”.
In his “Findings and Reasons”, Mr Blick appeared to accept the applicant’s claims in relation to the death of his father and the eviction of his family from their land. He said:
Credibility
65.After testing his story at interview I accept that the claimant is who he says and from where he claims. Furthermore I accept his and his agent’s claims that:
•In 1998 his father was killed and his family evicted from their land, following the father’s taking action that could have been perceived by local people as contrary to their religious beliefs and supportive of the UN;
•The land was occupied, and still is, by Commander [C], a Hazara who the claimant says is under the control of Commander [C2];
•His mother sent him to Iran following this incident;
•His brother later returned to make inquiries about his father’s death and bring his family to Iran;
•His brother was killed in a hit and run incident while in Afghanistan;
•His mother left Afghanistan in 2006, partly because of harassment about the family land.
66.I am, however, uncertain about one aspect of the claimant’s claims.
67.He said on entry and subsequently that he fears returning to Afghanistan because he would be killed. In the IMR interview he said that he is not interested in the land or finding out about his father’s fate, but would just like to return to his village (but feared doing so because of the danger). Yet his agent in the second submission says that if he returned he would seek justice for his father and brother’s killing and fight to reclaim his land (see paragraph 55 above).
68.The most likely explanation of these inconsistencies is that the claimant is, in fact, fearful of returning to Afghanistan, reluctant to face up to the possibility that he will have to, and confused about what he would do in that event. They do not in my view affect his overall credibility.
Mr Blick then considered the general generic claim about the applicant’s attributes as an Hazara Shia, concluding:
79.… I find that there is not a real chance that the claimant would be persecuted for reasons of his Hazara ethnicity or Shi’a faith if he were to return to Afghanistan in the reasonably foreseeable future.
Mr Blick then considered claims by the applicant’s agent that the applicant would be at risk as a returnee or a returnee from the West or a returnee from Iran, and did not accept that the applicant’s membership of one or all of these groups would give rise to a real chance of persecution for that reason.
Mr Blick also considered the applicant’s concerns in relation to Kuchi nomads and generalised violence if he returned to Afghanistan, and did not find these considerations gave rise to refugee status.
Mr Blick then considered the applicant’s fears based on his personal history, and his fears of the local commanders in his village and its province. The grounds which I shall address below focused upon the following part of his reasoning on this topic:
98.Imputed political opinion, non‑believer: the claimant’s agent has said that he fears serious harm if returned to Afghanistan on account of:
•[the applicant’s] imputed political opinion as he and his family are openly opposed to Commander [C2] and Commander [C], both of whom are powerful and influential Commanders in the [village] province;
•the perception that [the applicant] is a non‑believer on account of:
o The accusations made by people in his village that the family were non‑believers and must be killed on account his father’s work with the UN and the perception that his father was a non‑believer (religion)
99.The claimant’s descriptions, in his statutory declaration and subsequently, of the events that led to his father’s murder in 1998 and the move of members of his family to Iran, suggest that the family had a different view of their religious obligations from that of the local Hazaras. These people also, it would appear, objected to the fact that the claimant’s father was supportive of foreign assistance.
100.In relation to this, the proposition advanced on the claimant’s behalf by his agent can be summarised as follows:
•Local people formed the view that the claimant’s father and his family were opposed to their religious and political beliefs;
•The murder of his father and seizure of the family land were the direct results of this perception;
•[C], a Hazara who occupied the land at the time and still does, is a powerful local commander who is under the control of [C2], a Hazara described by various sources as a strongman in [village] province who is responsible for many human rights abuses;
•The claimant would be at risk of Convention‑related harm from [C] and/or [C2] if he were to return to reclaim the land. [C] would see him as holding similar religious and political opinions and demonstrating opposition to those of [C]/[C2];
•[C’s] association with [C2] would mean that nowhere in Afghanistan would be safe for the claimant.
101.I accept the claimant’s account of the killing of his father.
102.The Migration Act (s9lR(1)(a)) provides that Article 1A(2) of the Convention does not apply in relation to persecution for one or more of the reasons mentioned in the Article unless that reason is the essential and significant reason, or those reasons are the essential and significant reasons, for the persecution.
103.The threshold question, then, is whether the people responsible at the time were just using the father’s behaviour as an excuse for a land grab, or whether the religious and political aspects were the essential and significant reasons for their actions. If the former, then even if the claimant on return were at risk of harm from, or instigated by, [C] it could not logically be attributed to any other factors than [C’s] desire to retain the family land and/or avoid retribution for the murder of the claimant’s father.
104.In considering this, I attach weight to the claimant’s comment in his statutory declaration that: I believe this was an excuse to take our land from us. The claimant repeated this in the IMR interview. He also mentioned in the RSA interview that the land dispute had been going on for some time.
105.At the IMR interview the claimant said that [C] and the “[the governor]” mentioned in his statutory declaration were working together. He did not, however, assert any motivation beyond the wish to seize and occupy the family land. This was a claim made by the agent during closing submissions and later in the second written submission.
106.I have also taken note of the sources in relation to [C2], referred to in the second agent submission. It would appear from these that [C2’s] activities, sometimes in association with local commanders, included dispossession and seizure of Hazara lands on a fairly wide scale ‑ although there are no recent reports of such activities.
107.For example one source, the 2003 UNHCR report Land Issues Within the Repatriation Process of Afghan Refugees relates that:
in sub‑district 8 and 10 of Kabul City, a number of Hazara families from [location], have claimed that persons affiliated to two major commanders [T] and [C2] had occupied their houses and land.
108.Certainly, [C2] comes across as a political player ‑ in the 1990s he is reported as negotiating a surrender to the Taliban in [location]. There is also a recent biographical summary of one of [C2’s] wives [W], an Afghan politician, which says
[W] is married to [C2], a strong man and warlord in [village] Province. [W] is said to be “controlled” by her husband.
109.But the sources adduced by the agent do not support the view that in dispossessing Hazaras [C2] or his collaborators had an agenda beyond simple self‑interest.
110.I do not accept, therefore, that political or religious motivations were the essential and significant reasons for the actions of [C] in instigating the murder of the claimant’s father and the consequent illegal occupation of the family land, as claimed in the agent’s second submission.
(citations omitted)
It appears to me, and as I understood the submissions of both counsel before me it was not in dispute, that Mr Blick’s subsequent reasoning was premised upon the above finding that the murder of the applicant’s father and the subsequent appropriation of their family land by the local commander did not have a necessary Convention reason. This finding provided the foundation for his subsequent findings that the applicant’s past and present fears of persecution in his home village also lacked a Convention nexus. As I shall indicate, the grounds that were argued before me contended that legal error is disclosed in the above reasoning in relation to that conclusion, and it was not in dispute that such an error would also infect Mr Blick’s subsequent reasoning and his adverse conclusion on this part of the applicant’s refugee claims. It is not, therefore, necessary for me to closely analyse the subsequent reasoning.
In short, Mr Blick considered the significance of the events surrounding the applicant’s brother’s death, and the harassment of his mother. In relation to the former, Mr Blick assumed that the person responsible for the brother’s death would be “[C] or someone acting under his instructions”. In relation to the subsequent harassment of the applicant’s mother, he found “there is a clear nexus, therefore, between the harassment and the land dispute”. However, he concluded:
115.I do accept that the claimant would be at risk of harm from [C] if he returned to Afghanistan, and particularly if he returned to [village] to investigate his father’s murder and try to reclaim the land. Were he to return, [C], [C2] or their collaborators may seek to persecute him. However, I find that the essential and significant reasons for harming the claimant would not be religion or politics, but the reasons of self‑interest and criminality that operated earlier.
116.Accordingly, having regard to the available information, I find that the claimant does not have a well‑founded fear of persecution on return to Afghanistan in the reasonably foreseeable future on any of the following grounds:
•as a non‑believer;
•for an imputed political opinion arising from his father’s assistance to the United Nations;
•for an imputed political opinion in opposition to [C]/[C2];
•on account of his profile or his family’s profile.
Mr Blick addressed the question of the availability of State protection in relation to the applicant’s fears arising from the family history. He accepted that there would be an absence of State protection due to the influence of the powerful local commanders, but he found:
126.As discussed above, however, such efforts would be motivated by factors other than the claimant’s race or religion.
127.I find, therefore, that:
•any failure of state protection for the claimant would not be for the essential and significant reasons of his race and/or religion; and, consequently
•the claimant does not have a well‑founded fear of persecution on this basis.
The Grounds of Review
The grounds of review relied upon by counsel for the applicant are set out with a wealth of alternative formulations and particulars:
1.The second respondent committed jurisdictional error by failing to address, or inadequately addressing, one of the claimed bases for the applicant’s fear of persecution.
Particulars
(a)The applicant claimed that if he was forced to return to Afghanistan there was a real chance he would be seriously harmed for a Convention reason, being the perception that the applicant is a non‑believer.
(b)The second respondent failed to consider whether a well‑founded fear of persecution based on a person’s perceived status as a “non‑believer” or infidel falls within the definition of a refugee under Article 1A(2) of the Refugees Convention (Convention).
(c)The second respondent further failed to consider whether the applicant was perceived to be a non‑believer or infidel by persons within Afghanistan.
(d)The second respondent further failed to consider the applicant’s claim that there was a real chance that the applicant would be seriously harmed or persecuted because of the perception that he was a non‑believer or infidel.
2.The second respondent committed jurisdictional error by applying the essential and significant test and failing to follow the procedures stipulated in the Guidelines for the Independent Merits Review (Guidelines).
Particulars
(a)The Guidelines dated 1 April 2010 applied at the time the IMR interview was conducted.
(b)The Guidelines provided that any person who meets the definition of a refugee under the Convention is a refugee (cl 2.3).
(c)The Guidelines stated that ss 36 and 91R‑91U of the Migration Act 1958 (Migration Act) may be useful as an aid to interpreting aspects of the Convention but “it is important to note that these sources of interpretation are not binding authorities” (clause 2.3).
(d)The second respondent determined the applicant’s application based on an application of the test under s 91R(1)(a) of the Migration Act which requires an applicant to show, for the purpose of the application of the Act or regulations, that the essential and significant reason(s) for the persecution relates to one or more of the reasons mentioned in the Convention.
(e)The Convention does not require a person to show that the essential and significant reason for the persecution relates to one or more of the reasons mentioned in the Convention.
(f)Accordingly, the second respondent applied the wrong test (which involved a higher threshold) and failed to follow the Guidelines.
3.In the alternative to ground 2 above, the second respondent committed jurisdictional error by asking the wrong question or incorrectly applying the law.
Particulars
(a)Assuming the second respondent was obliged to apply s 91R(1)(a) of the Migration Act (which is not agreed), s 91R(1)(a) required the second respondent to consider whether the applicant had a well‑founded fear of being persecuted for the essential and significant reason of “race, religion, nationality, membership of a particular social group or political opinion”.
(b)The second respondent only considered whether the essential and significant reason for past persecution was one of those reasons.
(c)The second respondent did not consider whether the persecution feared by the applicant was for the essential and significant reason of “race, religion, nationality, membership of a particular social group or political opinion”.
(d)In the alternative, in holding that the essential and significant reason for past persecution was a desire to seize land belonging to the applicant’s family, the second respondent failed to distinguish between the manifestation of the persecution and the reason for the persecution.
4.The second respondent committed jurisdictional error by relying on a fact of which there was no evidence or failing to consider relevant material.
Particulars
(a)In making his determination, the second respondent relied on the asserted fact that at the IMR interview the applicant did not assert any motivation of [C] or [the governor] beyond the wish to seize and occupy the land.
(b)In fact, during the IMR interview the applicant told the second respondent that:
(i) [C], the commander of the area, feared that the applicant’s father was going to bring Christianity and bring a lot of changes to the village;
(ii) the people in the applicant’s village were very religious and anyone who helped others from other countries were considered infidels. The attitude of the local people was that because the applicant’s father was bringing food on behalf of the UN to the village, they thought he was helping convert people to Christianity;
(iii) this attitude of the local people was a good reason for them to kill the applicant’s father and threaten his brother;
(iv) the applicant’s father’s activities and the food he distributed made an excuse for [C] (who worked with [the governor]) and a lot of people who worked for him to kill the applicant’s father and then take their land.
However, notwithstanding this complexity, as elaborated in counsel’s written submissions and further focused in oral submissions, essentially, as I understood it, the four grounds may be analysed in the manner I shall address below.
Ground 1
As developed in oral submissions, Ground 1 challenged Mr Blick’s reasoning and conclusions leading to paragraph 110, where he found that there was not a Convention reason for the death of the applicant’s father and the subsequent occupation of their land by the local commander. The applicant’s counsel submitted that this reasoning involved a “misunderstanding or misconstruing [of] a claim advanced by the applicant” and that Mr Blick’s report then “base[d] its conclusion in whole or in part upon the claim so misunderstood or misconstrued”, adopting the language of the Full Court in NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 144 FCR 1, [2004] FCAFC 263 at [63].
As that case held, it is a jurisdictional error of law for a refugee determination to address a refugee claim based on such a misunderstanding or misconstruction. The High Court in Dranichnikov v Minister for Immigration & Multicultural Affairs (2003) 197 ALR 389, [2003] HCA 26 and in Plaintiff M61 at [90] characterised such an error as also being denial of procedural fairness. It was therefore uncontroversial that such an error, if detected in Mr Blick’s reasoning, would be an appropriate basis for granting relief of the nature sought in the present application.
Essentially, the argument for the applicant, as I understood it, was that Mr Blick’s report shows that, perhaps for reasons which can be analysed further under other grounds of the review, he failed to address the applicant’s evidence pointing to the motivations of the persons who killed his father having an obvious Convention nexus. Their claimed motivations being the religious opinions of the conservative Muslim population of the applicant’s village, and their response to the actions of the applicant’s father when assisting the UN aid effort and making use of the UN aid. His evidence clearly presented these motivations as those of the actual murderers, and also suggested that they had been exploited by the local commander.
In my opinion, the applicant’s evidence clearly presented a Convention nexus to the death of his father, both in his original claims and also clearly at his interview by Mr Blick in the passages which I have emphasised above. He clearly referred to the people who killed his father as being motivated by “thinking that he is trying to bring Christian religion too”, and “probably he will bring the different religion too”. It is clear that he understood the religious opinions of the murderers of his father to have provided their sole reasons for killing his father, when he said: “it’s not a good reason for me, but it was a good reason for those people”.
Reading the rest of the transcript, I do not understand Mr Blick not to have understood and accepted that the applicant was claiming that the murderers of his father were so motivated for religious reasons, or for mixed religious and political reasons, in the sense that the UN was identified by them as an agent for political change, as well as a religious threat, the two appearing to be entwined in the politics and religion of the applicant’s village.
I am unable to find in Mr Blick’s “Findings and Reasons”, any discussion by Mr Blick indicating he did not accept that part of the applicant’s evidence. However, he implicitly decided that it was not necessary for him to address this evidence in his findings and reasons, when characterising the fears of the applicant for returning to the location of his father’s murder, and the location of the continuing harassment of his mother at the hands of the local villagers. Rather, it is clear that Mr Blick’s finding at paragraph 110, which I have extracted above, was focused entirely upon the motives of the local commander when taking advantage of the religious prejudices of the local villagers, and not upon the motives of the murderers of the applicant’s father, which had presented to the local leader a means of obtaining the family’s property.
Counsel for the Minister sought to explain the absence of discussion and findings as to the motives for the harms inflicted and feared from the local villagers, and to persuade me that Mr Blick had not failed to address essential integers or elements in the applicant’s refugee claims. He submitted that the applicant’s evidence raised only a claim that the villagers were motivated solely by reason of subservience to the local leader, that is, that they were non‑thinking tools of his personal greed, so that their religious opinions were immaterial to the events which unfolded. However, in my opinion, to understand the applicant’s evidence in that way would be to misconstrue his evidence in a manner which would amount to error of law. I do not consider that such an interpretation of the applicant’s refugee claims would have been open to Mr Blick, if he indeed had interpreted the applicant’s evidence that way.
Moreover, I cannot read his report as treating the applicant’s evidence about the opinions and actions of the local villagers in that way. Rather, in my opinion, Mr Blick probably reasoned that the underlying motives of the murderers and the agents of direct persecution of the applicant’s family had become superseded, or subsumed, or rendered irrelevant, by the actions of personal greed of the village leader, who had taken advantage of the villagers’ religious beliefs and their murder of the applicant’s father, to seize the family property. As I shall explain below, this reasoning itself reflects an error of law raised by Ground 3.
However, it is enough to uphold Ground 1, for me to conclude from the omission of critically important discussion and findings from Mr Blick’s report in relation to an essential element in the applicant’s refugee claims, that Mr Blick has misunderstood or misconstrued the applicant’s refugee claims, in so far as they clearly presented a claimed religious nexus between the actions of his father in support of the UN agencies and the ensuing perception of the local villagers that the father and his family were infidels and enemies of the local population, which in turn directly resulted in the persecution of the family. He clearly addressed only the applicant’s fears in relation to the actions of the local commander, without examining the claimed Convention reasons for the actions of the true persecutors.
In my opinion, therefore, Ground 1 is established in its essential argument.
Ground 2
The applicant’s counsel’s submissions on Ground 2 identified, as is apparent, that Mr Blick’s references to the “essential and significant reasons” for the persecution which the applicant and his family claimed to have suffered from in the past, and which the applicant feared in the future, reflected language taken from s.91R(1)(a) of the Migration Act. This provides:
91R Persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol does not apply in relation to persecution for one or more of the reasons mentioned in that Article unless:
(a)that reason is the essential and significant reason, or those reasons are the essential and significant reasons, for the persecution; and …
Counsel submitted that Mr Blick’s references to this provision revealed a failure by Mr Blick to perform a function which he was required to exercise by the Minister under the guidelines for writing his report. In effect, he submitted that it was not the function of Mr Blick to make recommendations by reference to the embellishments on the Refugees Convention provided in the Migration Act in s.91R(1)(a).
However, in my opinion, his submissions in this respect were clearly inconsistent with the reasoning of the High Court in Plaintiff M61. In that case, the IMR report was written pursuant to guidelines announced by the Minister in relation to IMR reviews on 29 July 2008 (see [38]). The High Court said:
47Much emphasis was given in the IMR Manual (as it was in the RSA Manual) to the RSA process and the IMR process being “non‑statutory”. Again, however, the Manual did not seek to identify what power was being exercised. Rather, the consequences said to follow from the process being “non‑statutory” were identified. In particular, it was said in the IMR Manual that independent reviewers “may still be guided by the legislated interpretations of the Refugees Convention in sections 36 and 91R‑91U of the Act and Australian case law on the interpretation of ‘protection obligations’”, but it was also said to be “important to note that these sources of interpretation are not binding authorities”.
Their Honours later identified this approach in the guidelines as inviting error of law by IMR reviewers. They said:
88One of the powers whose exercise was being considered was the power to lift the bar under s 46A and permit the plaintiff to make a valid application for a protection visa. Exercise of that power on the footing that Australia owed protection obligations to the plaintiff would be pointless unless that determination was made according to the criteria and principles identified in the Migration Act, as construed and applied by the courts of Australia. For the purposes of the Minister considering the exercise of power under s 46A, what the RSA Manual and the IMR Manual both referred to as “Australian legislation and relevant case law” had, therefore, to be treated as binding upon those who made the assessments and those who reviewed those assessments, not just as “aid[s] to the interpretation of the Refugees Convention”. (emphasis added)
89Although expressed generally – as whether Australia owed the plaintiff protection obligations – the fundamental question to which the assessment and review processes were directed had to be understood as whether the criterion stated in s 36(2), as a criterion for grant of a protection visa, was met. Necessarily, that question had to be understood by reference to other relevant provisions of the Migration Act, and the decided cases that bear upon those provisions. If the legislation and case law were treated as no more than aids to interpretation, the assessment or review would not address the question that the Minister had to consider when deciding whether to lift the bar under s 46A. Whether another, different, question about the application of the Refugees Convention (as amended) according to some understanding of the Convention different from that adopted in Australian legislation and case law could be relevant to the issues presented by the possible application of s 195A need not be considered.
In my opinion, the High Court’s opinion that “Australian legislation and relevant case law had … to be treated as binding upon those who made the assessments and those who reviewed those assessments”, must necessarily encompass an obligation to treat s.91R as binding on an IMR reviewer, when forming opinions as to whether eligibility for a protection visa could be found under s.36(2). I am therefore bound to reject the present submissions.
I note that the paragraph in the guidelines which counsel for the applicant invited me to assume governed Mr Blick’s report, being guidelines dated 1 April 2010, contained the statement:
2.3 Assessing Claims for Protection
While the RSA process is non‑statutory, when assessing a claim for protection, Independent Reviewers may still be guided by the legislated interpretations of the Refugees Convention in sections 36 and 91R‑91U of the Act and Australian case law on the interpretation of “protection obligations”. It is important to note that these sources of interpretation are not binding authorities but may be useful as an aid to interpreting aspects of the Convention.
In assessing whether a claimant engages Australia’s protection obligations under the Refugees Convention, Independent Reviewers should take into consideration:
-the Refugees Convention (see
-the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status (the UNHCR Handbook) and other UNHCR guidelines on the interpreting of the Refugees Convention (see
-country information available through CISNET and country and legal advice direct supplied by the Refugee Review Tribunal (‘RRT’);
-the Department of Immigration and Citizenship’s Offshore Refugee Status Assessment Procedures Manual (provided to Departmental RSA officers); and
-any other relevant information, including information and source material held by the Department that pertains to an individual case.
Counsel’s submissions sought to build upon the suggestion in this paragraph that reference to s.91R was not binding on a reviewer, and that Mr Blick should not have applied it if it was inconsistent with the terms of the Convention and the UNHCR Handbook. However, in my opinion, if that paragraph were to be construed in that way, then it would give rise to the same error of law that the High Court found to have affected the report in Plaintiff M61.
I consider that Mr Blick made no error of law, when directing himself in accordance with Plaintiff M61 at paragraphs 7 to 9 of his report, that he was bound by provisions of the Migration Act, including s.91R.
I therefore consider that Ground 2 should not be accepted.
Ground 3
The submissions of counsel for the applicant, in effect, focused upon particular (d) of Ground 3, and submitted that even with the application of s.91R(1)(a), the Convention definition encompassed there being more than one “essential and significant” reasons for persecution, and allowed for the concurrent existence of non‑Convention related causes of the persecution. That is, he submitted that s.91R was not inconsistent with finding a relevant Convention nexus, notwithstanding that there were cumulative or concurrent reasons for the feared persecution. The presence of a non‑Convention element in the persecution in such circumstances would not exclude the finding of a well‑founded fear of persecution for one of the reasons covered by the Convention, if a Convention reason provided an essential and significant underlying reason.
I did not understand counsel for the Minister to submit that s.91R prevented such an understanding of the Convention definition. I remain of the opinion I expressed in SZFZN v Minister for Immigration & Anor [2006] FMCA 1153 at [21]:
I do not consider that the words “essential and significant” allow a Tribunal to ignore the real or essential underlying Convention reason for a person’s conduct. In my opinion, the provision should be applied upon an understanding of normal legal concepts of causation attaching to the phrase “by reason of”. It provides a gloss requiring disregard of concurrent or contributory Convention causes of persecution if they can be characterised as inessential or insignificant.
Such a reading of the definition in the Convention is well established in jurisprudence. It arises from the obvious circumstances of the Refugees Convention, and the understanding that “human conduct is rarely, if ever, uni‑dimensional”, as was said by Kirby J in Chen Shi Hai v Minister for Immigration & Multicultural Affairs (2000) 201 CLR 293 at [69]. His Honour made this point by reference to the speech of Lord Hoffmann in R v Immigration Appeal Tribunal; Ex parte Shah [1999] 2 AC 629, in which his Lordship at 654 pointed to a well understood illustration of religious or racial persecution which was obviously intended to be covered by the Convention:
A Jewish shopkeeper is attacked by a gang organised by an Aryan competitor who smash his shop, beat him up and threaten to do it again if he remains in business. The competitor and his gang are motivated by business rivalry and a desire to settle old personal scores, but they would not have done what they did unless they knew that the authorities would allow them to act with impunity. …
In the present case, counsel for the applicant submitted that Mr Blick’s reasoning leading to his conclusion in paragraph 110 suffered from this misconception of law, by treating as irrelevant to the characterisation required by the Convention definition the underlying religious reasons for the persecution suffered by the applicant’s father and his family and feared by himself, and by focusing entirely upon the motives of the beneficiary of the villagers’ hostility and violence inflicted for religious reasons.
The need to examine the underlying circumstances which have allowed a person to participate in and benefit from acts of persecution has been pointed to in a series of cases in the Federal Court concerning fears of extortion. As it has been pointed out, the activities of extortionists may or may not have underlying Convention nexus, and it is an error of law to overlook the need to examine the underlying reasons for the refugee claimant being targeted for extortion by its principal beneficiary. As Finn and Dowsett JJ said in Rajaratnam v Minister for Immigration & Multicultural Affairs (2000) 62 ALD 73, [2000] FCA 1111 at [46] and [48]:
[46]As this court has indicated on several occasions, care needs to be taken when considering whether extortion has been practised upon a person for a convention reason: see, eg, Minister for Immigration and Multicultural Affairs v Sarrazola (1999) 95 FCR 517; 57 ALD 8; 166 ALR 641 at 645–6. The need for this is apparent enough. In the usual case of extortion the extorting party will be acting for a self‑interested reason (ie to gain an advantage for himself or herself, or for another). In this sense, his or her interest in the person extorted can always be said to be personal. What needs to be recognised, though, is that the reason why the extorting party has that interest may or may not have foundation in a convention reason. The extorted party may have been chosen specifically as the target of extortion for a convention reason, or may have become the subject of extortion because of the known susceptibility of a vulnerable social group to which he or she belongs, that social group being identified by a convention criterion. Or, conversely, the person may have been selected simply because of his or her perceived personal capacity to provide the particular advantage sought and for no other reason or purpose.
…
[48]In a particular setting, then, extortion can be a multi‑faceted phenomenon exhibiting elements both of personal interest and of convention‑related persecutory conduct. For this reason the correct character to be attributed to extorsive conduct practised upon an applicant for refugee status is not to be determined as of course by the application of the simple dichotomy: “Was the perpetrator’s interest in the extorted personal or was it convention related?” In a given instance the formation of the extorsive relationship and actions taken within it can quite properly be said to be motivated by personal interest on the perpetrator’s part. But they may also be convention‑related. Accordingly any inquiry concerning causation arising in an extortion case must allow for the possibility that the extorsive activity has this dual character.
Similarly, authorities in ‘fear of retribution’ cases have pointed to the need to consider whether the actions which might motivate the feared persecutor to inflict personal retribution were themselves the result of a Convention matter. In this area, Gilmour J in SZJRI v Minister for Immigration & Citizenship (2008) 103 ALD 176, [2008] FCA 1090, and Selway J in SHKB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 545 referred to the characterisation suggested in Minister for Immigration & Multicultural Affairs v Singh (2002) 209 CLR 533. In the latter case, Selway J said:
12In my view the attempt by the Tribunal to draw a distinction between Convention based reasons and retribution involves a jurisdictional error. In Minister for Immigration & Multicultural Affairs v Singh (2002) 209 CLR 533 (‘Singh’) the High Court held, although in a slightly different context, that where an act of revenge or retribution is derived from or arises out of a political act or campaign then the act or revenge or retribution may be a political act: see at 544‑545, 550‑553 and 577‑578. As it was put by Gleeson CJ at 545
‘[The Tribunal] was proceeding upon a view that there is a necessary antithesis between violent retribution and political action. That was an error of law’.
The Tribunal in this case would seem to have fallen into the same error. In this case the Tribunal would seem to have proceeded on the view that there was an antithesis between retribution on the one hand and political or racial persecution on the other. At the very least there was a further step that was necessary in the Tribunal’s reasoning - the Tribunal was required to determine whether or not it was satisfied that those seeking retribution against the applicant were doing so as an aspect of a broader political or racial campaign to seize farm lands near Durban, or were doing so for reasons unrelated to that campaign. If the Tribunal was satisfied that the retribution formed an aspect of such a broader campaign then it would follow that fear of such an act of retribution was a fear based upon a Convention reason. In my view the Tribunal has fallen into the same error as that identified in Singh.
Using the language of the above authorities, it appears to me on a fair reading of Mr Blick’s reasoning between paragraphs 102 and 110, that Mr Blick has made an error of law of a similar type, by assuming that there is simple dichotomy between the motives of the beneficiary of the initial persecution of the family and the underlying religious reasons motivating the villagers to persecute the family and to enable the oppressive conduct of the local commander. Or using Selway J’s language, Mr Blick assumed that there was “an antithesis” between the commander’s taking the applicant’s family’s land and exploiting the villagers’ continuing hostility to his family, and the underlying religious and political circumstances which allowed his conduct to happen. These errors then led him to treat as irrelevant, a consideration of the causative implications of the perceptions of the local villagers that the applicant’s father and his family were supporters of infidels and a menace to their society.
Although paragraph 103 of Mr Blick’s report might appear ambiguous in relation to such an error, his subsequent reasoning can only fairly be understood on the basis that he has made the error of law contended under Ground 3. The identification of this error then explains Mr Blick’s failure to address in his report the important elements in the applicant’s refugee claims which support Ground 1. In short, in my opinion Mr Blick erroneously thought that the Convention definition, as embellished by s.91R(1)(a), did not require him to make further findings as to the motivations of the murderers and the relevance of the attitudes of the local village to the religious opinions of the applicant’s family, once he found that C was not personally motivated by a Convention reason when occupying the family land.
The error also, in my opinion, is reflected in Mr Blick’s reasoning which failed to appreciate the significance of the applicant’s statement that the villagers’ perceptions of his father provided “an excuse to take our land from us”. In my opinion, in the context of his other evidence, the applicant could only have been understood as saying that the villagers’ religious attitudes had provided the means by which the local commander had been able to aggrandise himself for his own personal benefit. This statement should have been considered by Mr Blick as providing, rather than denying, evidence of a relevant Convention nexus to the harms which had followed from their perceptions and their murderous consequences.
I am, therefore, for all the above reasons persuaded that an error of law coming within Ground 3 of the application has been made out.
Ground 4
As developed by the applicant’s counsel, this ground contended that there was ‘no evidence’ capable of supporting Mr Blick’s finding that the local commander’s own motives were purely personal aggrandisement without any religious or political component.
To the extent that these submissions pointed to elements in Mr Blick’s reasoning which I have already discussed in relation to Grounds 1 and 3, counsel’s submissions supported those grounds.
However, as I understood it, he also submitted that Mr Blick was bound to accept the suggestion in the applicant’s evidence at the interview that the local commander shared the conservative religious opinions of the villagers, and was bound not to find the contrary. In this respect, he pointed to the applicant’s statements in the passage I have quoted above that “the person which was there, had the power, he was fear that my father going to bring Christianity and bring a lot of changes in our village” and “he is a Mujahideen, from the old time”.
This submission might appear to draw upon a line of cases which allows the Court to conclude that there is an error of law by way of a material finding of fact not based on evidence, where all the evidence points to the contrary (see my discussion in SZQVI v Minister for Immigration & Anor [2012] FMCA 222 at [33]‑[37]).
However, this finding was a matter of evaluation, and I am not persuaded that it might not have been open to Mr Blick to find that the local commander was purely motivated for personal, financial greed. This is an inference upon which minds might differ, but which was open to him. What did appear from the applicant’s evidence, and needed to be addressed by Mr Blick, was, as I have already pointed out, that to the extent that C was personally motivated, he was only able to give effect to that motive by making use of the religious prejudices of the population who had inflicted the original harm on the family and might do so again in the future.
I therefore do not consider that any separate ground of review is raised by Ground 4 in supporting the ground of relief.
However, for the above reasons I consider that an entitlement to a declaration of errors of law has been established. I do not consider that it is necessary to order an injunction in relation to the future actions of the Minister or his Department, since in my opinion my judgment should be sufficient to cause the Minister to direct a further review of the applicant’s refugee status.
I certify that the preceding sixty‑three (63) paragraphs are a true copy of the reasons for judgment of Smith FM
Date: 18 May 2012
2
15
0