MZYRY v Minister for Immigration - [2012] FMCA 400

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MZYRY v MINISTER FOR IMMIGRATION & ANOR

[2012] FMCA 400

MIGRATION – Judicial review of Independent Merits Review – offshore entry person – applicant Hazara Shi’a Afghani – no failure to consider recent and relevant country information – no apprehended bias – no jurisdictional error.

Migration Act 1958 (Cth), s.36(2)
1951 Convention Relating to the Status of Refugees
1967 Protocol Relating to the Status of Refugees

Minister for Immigration and Citizenship v SZMDS[2010] HCA 16
MZXSA v Minister for Immigration and Citizenship [2010] FCAFC 123
NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264
NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10
Plaintiff M61/2010E v Commonwealth of Australia; Plaintiff M69 of 2010 v Commonwealth of Australia (2010) 243 CLR 319
SZJTQ v Minister for Immigration and Citizenship (2008) 172 FCR 563

Applicant:

MZYRY

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

SUE ZELINKA IN HER CAPACITY AS INDEPENDENT MERITS REVIEWER

File Number:

MLG 1515 of 2011

Judgment of:

Hartnett FM

Hearing date:

7 May 2012

Delivered at:

Melbourne

Delivered on:

11 September 2012

REPRESENTATION

Counsel for the Applicant:

Mr Marsh

Solicitors for the Applicant:

Victoria Legal Aid

Counsel for the First Respondent:

Ms Latif

Solicitors for the First Respondent:

Sparke Helmore

THE COURT ORDERS THAT:

The application of the applicant filed 20 October 2011 is dismissed.
The applicant pay the costs of the first respondent fixed in the sum of $6,240.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT MELBOURNE

MLG 1515 of 2011

MZYRY

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

SUE ZELINKA IN HER CAPACITY AS INDEPENDENT MERITS REVIEWER

Second Respondent

REASONS FOR JUDGMENT

These proceedings commenced on 20 October 2011 with the applicant filing an application for judicial review of an Independent Merits Review dated 30 August 2011. The Independent Merits Reviewer found that the applicant did not meet the criterion for a protection visa set out in s.36(2) of the Migration Act 1958 (Cth) (‘the Act’) and accordingly recommended that the applicant not be recognised as a person to whom Australia has protection obligations under the 1951 Convention Relating to the Status of Refugees, as amended by the 1967 Protocol Relating to the Status of Refugees (“the Refugees Convention”).
The application filed was amended by amended application handed up to the Court at the hearing. The grounds of the application were stated as follows:
“1. The recommendation of the Independent Merits Reviewer was affected by an error of law in that the Reviewer was not procedurally fair in determining that the applicant was not a person to whom Australia has obligations under the Refugees Convention.”

PARTICULARS

(a)    The Independent Merits Reviewer omitted to rely on recent and relevant country information;
(b)     The Independent Merits Reviewer conducted fact finding in such a way that a fair minded observer might reasonably apprehend that the conclusions had been reached with a mind not open to persuasion and unable or unwilling to evaluate all material fairly;
(c)     The Independent Merits Reviewer conducted fact finding in an irrational and selective way.”

The applicant sought a declaration that the recommendation of the Independent Merits Reviewer was not made in accordance with law by reason of the grounds stated, and further an injunction restraining the Minister for Immigration and Citizenship, by himself or by his Department, officers, delegates or agents from relying upon the recommendation of the Independent Merits Reviewer.
The first respondent filed a response to the application on 2 December 2011 and written submissions filed 1 May 2012. In essence, the first respondent asserts that the application for judicial review does not establish any jurisdictional error in the decision of Ms Sue Zelinka in her capacity as Independent Merits Reviewer dated 30 August 2011.

History

The applicant arrived in Australia on 11 February 2010. He arrived by boat and was interviewed at Christmas Island on 27 February 2010. The interview was conducted with the assistance of an interpreter. The applicant claimed that he was a single Hazara Shi’a born in 1985 in Behsud, Afghanistan. On 12 April 2010, the applicant made a request for a Refugee Status Assessment (‘RSA’). On 22 March 2011, he received an adverse decision from the RSA. On 20 April 2011, the applicant applied for an independent merits review.
The second respondent conducted an interview with the applicant on 11 June 2011 at Curtin Immigration Detention Centre. In a statement of reasons dated 30 August 2011, the second respondent recommended that the claimant not be recognised as a person to whom Australia has protection obligations. The applicant was advised of the Independent Merits Reviewer’s assessment and recommendation by letter dated 2 September 2011.
It is agreed between the applicant and first respondent that, broadly speaking, the applicant’s claims were as follows:
a)The applicant fears serious harm or death on the basis that he is a Shi’a Hazara.
i)The applicant’s father was killed during a bombing on a Hazara area by Pashtun militia in 1996;
ii)The applicant was a passenger in a coach which was ambushed by Pashtuns and/or Kuchis on the road between Kabul and the Hazara village of Siakhak;
iii)The applicant ultimately had to flee Siakhak following repeated attacks by Kuchis on the village and because the Pashtuns around the area seriously inhibited the practice of Shi’a Islam and punished those found to be practicing it (including whipping those who appeared to trim or shave facial hair and who prayed in a Shi’a rather than Sunni manner).
b)The applicant fears serious harm or death at the hands of the family of Massoumah, the daughter of a neighbouring family with whom the applicant eloped.
i)They repeatedly refused her to him in marriage on the basis of his status as a Hazara;
ii)They were furious at him, following the attempted elopement and Massoumah’s death during a car accident;
iii)There were various attempts made by the family to find the applicant in the months and years following the incident, including an incident at the applicant’s mother’s house where an altercation led to the police being called.
c)The applicant fears serious harm or death on the basis that he would be a failed asylum seeker returned from a Western country.
i)The applicant’s sur place claim - as articulated - is based on publication on the internet of a photograph of the applicant taking part in a protest outside Northern Immigration Detention Centre in Darwin;
ii)The applicant’s confidential paperwork in relation to his application for asylum was mistakenly handed to the wrong detainee at Curtin Immigration Detention Centre, putting him at risk.

The decision of the second respondent

The applicant was interviewed by the Independent Merits Reviewer on 11 June 2011. His migration agent was present. The interview was conducted with the assistance of an interpreter in the Hazaragi language. The Independent Merits Reviewer found the applicant was a citizen of Afghanistan and assessed the applicant's claims against that country as his country of nationality. She found in her conducting of that assessment the applicant was not overall a reliable or credible witness.
The Independent Merits Reviewer accepted that the applicant arrived in Iran from Afghanistan when he was ten and left when he was 18. He turned 18 in July 2003. The Independent Merits Reviewer was satisfied that he left Iran in 2003 and went to Pakistan for about six months. He returned to Afghanistan in the summer of 2004 and went to his mother’s in Kabul and obtained a job at a bakery, where he stayed long enough to learn how to bake bread. The applicant then went to Behsud where he was employed in a restaurant. He was in Afghanistan for at least two years before going to Dubai for 18 months. The Independent Merits Reviewer was satisfied that the applicant left Afghanistan in the latter half of 2006 and returned there in the first part of 2008. He remained at home for a short time before departing again, this time for Malaysia. He departed Afghanistan in June 2008.
The Independent Merits Reviewer accepted the applicant’s claim that he was sent to Iran by his mother in 1995 and that whilst in Iran until 2003 he sought to marry Massoumah, an Afghani of Sayyed ethnicity, against the wishes of her family. Massoumah died while seeking to elope with the applicant and her family sought details of the applicant’s whereabouts from his former employer in Iran. The Independent Merits Reviewer did not however accept the balance of the applicant’s claims as to Massoumah’s family’s interest in him and their actions following her death.
The Independent Merits Reviewer noted the applicant did not discuss at the review hearing his general fears as a Hazara and a Shi’a nor did he raise them at the original review in the United Nations High Commissioner for Refugees interview according to the summary of reasons obtained from the United Nations High Commissioner for Refugees. He raised these matters in his first statutory declaration declared on 12 April 2010 in support of his Refugee Status Assessment stating that he would “face persecution because of my Shi’a religion and Hazara ethnicity”.
The Independent Merits Reviewer did not consider the applicant was at risk of persecution by reason of his Hazara ethnicity on the basis of the claims of the applicant and her review of the independent evidence.
In referring to that review, the Independent Merits Reviewer said:
“I have reviewed independent evidence and am persuaded by the UNHCR view that “the mere fact that a person belongs to an ethnic group constituting a minority in a certain area does not automatically trigger concerns related to risks on the ground of ethnicity alone.” The evidence indicates societal discrimination against Hazaras, but not the targeted persecution for reason of race and/or religion that they experienced under the Taliban. The UNHCR advises looking at the specific facts of the matter. The claimant’s testimony was that his specific fear as a Hazara was from Pashtun Kuchis and aghwan who were aggressive in the Behsud district. I have noted in the independent evidence at page 13 above how I can find no modern reference to aghwan and based on what I have set out on those pages, I will simply assume it to mean Pashtun (which was certainly the way in which the claimant was using the word).”
The Independent Merits Reviewer did not consider the applicant was at risk of persecution by reason of his Shi’a faith on the basis of the applicant’s claims and the absence of corroboration from independent country information including information provided by the applicant’s migration agent. The Independent Merits Reviewer noted the applicant’s claim to be vague and generalised. She said in her reasons:
“There is no evidence from the usual reliable independent sources of evidence (or, indeed, any sources) that any sectarian violence involving Pashtuns harming Shi’as and disrupting their worship has occurred in Behsud, which as the evidence indicates, is firmly situated in the Hazarajat and is predominantly Hazara and Shi’a in its composition.”
The Independent Merits Reviewer further referred to information about specific anti-Shi’a actions perpetrated by the Taliban in past years as submitted by the applicant’s advisor. On the face of her reasons, it is clear the Independent Merits Reviewer considered more country information than that which she specifically reproduced in such reasons.
The Independent Merits Reviewer did not consider the applicant would be denied State protection by reason of being a Hazara and Shi’a, noting that the applicant made no claims nor did the evidence suggest that he had ever sought State protection for any specific fear. Again, the Independent Merits Reviewer looked to the totality of the claims and examined them in the light of independent information, which included the totality of country information before her.
The Independent Merits Reviewer did not consider any inadvertent provision of the applicant’s statement by the Independent Merits Reviewer to another detainee gave rise to a relevant risk of persecution. Further, the Independent Merits Reviewer did not consider the availability of photographic and video recording of the applicant’s involvement in a peaceful protest in Darwin gave rise to a well founded fear of persecution. Finally, the Independent Merits Reviewer did not consider the applicant was at risk of persecution by reason of his status as a failed asylum seeker returning to Afghanistan from a Western country or otherwise and in her reasons noted that she had read the available information about returning refugee and asylum seekers.
The Independent Merits Reviewer noted that credibility was difficult to assess and should not be decided upon demeanour or reaction at interview alone. However, where there were clear inconsistencies or where some claimed history was fanciful, farfetched or unrealistic, she noted that it may be that those claims, after careful consideration, could not be accepted as being true. The Independent Merits Reviewer found the claimant had been vague as to dates and times, initially entirely omitting the period he spend in Dubai. She noted that was an important period because to travel to Dubai, the applicant needed a lawful Afghan passport and visa documents, sometimes difficult to obtain by those fleeing persecution. In short, she found the claimant to be not straight forward in his responses. She remarked he did not always answer questions as if he was recalling his own experiences and, on a number of points, he was relying on things that other people told him. As he had more interviews, he added more detail to what started out initially as vague and general claims. He had made a number of assertions for which there was no independent evidence. Much of the evidence was contradictory. The Independent Merits Reviewer concluded that she did not find the claimant an adequately reliable or a credible witness.
The applicant challenged the Independent Merits Reviewer’s recommendation on the basis of her use of relevant country information and contends there has been jurisdictional error. The applicant asserts that the Independent Merits Reviewer omitted to rely on recent and relevant country information. Further, the applicant claims that in treating the country information as she did, the Independent Merits Reviewer conducted fact finding in a way that could be described in substantial respects unreasoned (insofar as there was no rationale for the omission of certain parts of relevant information), and selective of material going one way. A fair minded observer might reasonably apprehend that the conclusions had been reached with a mind not open to persuasion and unable or unwilling to evaluate all the material fairly (NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs(2004) 214 ALR 264 at 115). Finally, the applicant claims that the treatment of the country information was without reasoned foundation and selective. The treatment of the country information – irrational and selective treatment of the evidence – had the effect that the decision was irrational, illogical and not based on findings or inferences of fact supported by logical grounds, and thus affected by jurisdictional error (MZXSA v Minister for Immigration and Citizenship [2010] FCAFC 123 at 42).

Consideration

The choice of country information, the relevance, accuracy and weight to attribute to country information is a matter for the decision maker (NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at 11).
The Independent Merits Reviewer made findings on the basis of, cited in her reasons, specific items of country information and the totality of country information before her. Her reasons illustrate an awareness of the entirety of the various documents and information before her and form a comprehensive whole. She considered the applicant was not at risk simply because he was a Hazara on the basis of the country information cited in her reasons and she considered independent country information did not support the claim that Shi’as in Behsud seeking to worship in accordance with their practices, were whipped. The Independent Merits Reviewer went on to state no source of independent evidence available to her indicated that there was any sectarian violence involving Pashtuns harming Shi’as and disrupting their worship in Behsud. She acknowledged information filed by the applicant in this connection, but considered the information demonstrated that authorities were seeking to ensure religious sects could worship in peace. Ultimately, she did not consider country information supported the claim by the applicant that he was at risk of persecution by reason of his Hazara ethnicity and Shi’a faith.
The applicant relied upon the decision of SZJTQ v Minister for Immigration and Citizenship (2008) 172 FCR 563 in support of his contention that a decision maker errs by failing to take account of:
“The most accurate, complete and recent country information available to him or her.”
On a fair reading of the reasons, the Independent Merits Reviewer did in fact have regard to the relevant country information and did take into account that, which it was necessary for her to do. The reasons set out the awareness of the Independent Merits Reviewer of the relevant country information, the Independent Merits Reviewer’s engagement with it, consideration of it and subsequent findings in relation to such information. Those findings were not inconsistent with the country information provided by the applicant. Further, the country information referred to by the Independent Merits Reviewer in her reasons was the relevant material, was the most accurate, complete and recent country information on the question of the risk of persecution faced by Hazari Shi’as.
The applicant provided no satisfactory evidence in support of his submission that a claim of apprehended bias could be made out against the Independent Merits Reviewer. The Independent Merits Reviewer’s factual findings on balance were open to her on the evidence before her. No unfair evaluation of the applicant’s responses to her questions is evident, nor is it evident that the hearing was conducted in anything other than a fair way. Questions were asked of the applicant directed at adducing relevant material and matters of concern to the Independent Merits Reviewer were put to the applicant for comment. The Independent Merits Reviewer considered the applicant’s material and submissions and made positive findings on certain aspects of the applicant’s claims, even in circumstances where the applicant had been inconsistent in the putting of those claims.
The Independent Merits Reviewer’s treatment of the relevant country information was not unreasoned or selective as submitted by the applicant. I accept the submission made by the first respondent that the Independent Merits Reviewer identified those parts of the country information most pertinent to the issues she was addressing after having considered the applicant’s material and conducted further research. That country information was recent, relevant and extensive. The Independent Merits Reviewer identified the ways in which that material supported the applicant’s claims. She referred in her reasons to specific independent country information she was relying upon as a basis for her findings and otherwise, as can be seen from a reading of the whole of her reasons, she considered the totality of the independent evidence. Not all such material is referred to directly in her reasons and nor was it necessary for all such country information to be included. It was clearly considered however by the Independent Merits Reviewer. The findings were open on the evidence and do not reveal any error.

The Independent Merits Reviewer’s reasoning is not irrational or illogical. The applicant has not stated what findings are challenged in this connection, whether or how they relate to jurisdictional facts or how an error of this kind fits within Plaintiff M61/2010E v Commonwealth of Australia; Plaintiff M69 of 2010 v Commonwealth of Australia (2010) 243 CLR 319 at 78. The test for illogicality or irrationality “must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion” (Minister for Immigration and Citizenship v SZMDS[2010] HCA 16). This Court will not interfere in the decision by reason of this ground.
Accordingly, the application will be dismissed and costs should follow the event.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Hartnett FM

Date: 11 September 2012