MZYRI v Minister for Immigration - [2012] FMCA 396

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

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2012] FMCA 396
Decision Date: 30 April 2012

CaseChat Overview and Summary

The applicant, MZYRI, appealed a decision by the Minister for Immigration to not recognise him as a person to whom Australia owes protection obligations. The case was heard in the Federal Court of Australia. The applicant, a Hazara and Shi’a Muslim born in Afghanistan, claimed that he was at risk of persecution if returned to his home country due to his ethnicity and religion. He alleged that his father was killed and his family’s land was unlawfully taken due to religious and ethnic tensions.

The court had to decide whether the delegate of the Minister for Immigration erred in law when assessing the applicant's risk of persecution if returned to Afghanistan. Specifically, the court had to determine whether the delegate correctly considered the applicant's personal circumstances, including his ethnicity and religious beliefs, and whether these factors placed him at risk of persecution. The court also had to consider whether the delegate appropriately assessed the applicant's ability to seek protection from the Afghan authorities.

The court found that the delegate erred in law by not adequately considering the applicant's personal circumstances and the specific risks he faced due to his Hazara ethnicity and Shi’a Muslim faith. The court held that the delegate failed to properly assess the applicant's claim that the local authorities were corrupt and unable to protect him from persecution. This error of law meant that the delegate's recommendation to the Minister for Immigration was flawed.

The court declared that the delegate made errors of law in recommending that the applicant not be recognised as a person to whom Australia owes protection obligations. However, the court dismissed the rest of the applicant's application and ordered that the Minister for Immigration pay the applicant's costs in the amount of $6,240.

Orders

Orders of the court

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.

Background

Background to the litigation

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. …

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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