MZYXR v Minister for Immigration
[2012] FMCA 930
•12 October 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZYXR v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 930 |
| MIGRATION – Review of decision of Independent Merits Reviewer – offshore entry person – applicant Shia Muslim of Hazara ethnicity from Afghanistan – no jurisdictional error found – application dismissed. |
| Migration Act 1958 (Cth), s.36 1951 Convention Relating to the Status of Refugees 1967 Protocol Relating to the Status of Refugees |
| Minister for Immigration and Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 NAHI v Minister For Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 |
| Applicant: | MZYXR |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MICHAEL CHILCOTT IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER |
| File Number: | MLG 512 of 2012 |
| Judgment of: | Hartnett FM |
| Hearing date: | 26 September 2012 |
| Delivered at: | Melbourne |
| Delivered on: | 12 October 2012 |
REPRESENTATION
| Counsel for the Applicant: | Mr Robinson |
| Solicitors for the Applicant: | Maddocks Lawyers |
| Counsel for the First Respondent: | Ms Latif |
| Solicitors for the First Respondent: | Sparke Helmore |
THE COURT ORDERS THAT:
The application is dismissed.
The applicant pay the first respondent’s costs fixed in the sum of $6,471.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 512 of 2012
| MZYXR |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MICHAEL CHILCOTT IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER |
Second Respondent
REASONS FOR JUDGMENT
The applicant relies upon an amended application filed 1 August 2012 in this application for judicial review of a recommendation made by the second respondent in an independent merits review report dated 26 January 2012.
The grounds as stated in the application are as follows:
“1. On 26 January 2012, the Second Respondent (the Reviewer) recommended to the First Respondent that the Applicant should 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 Convention), as the Applicant did not hold a well-founded fear of persecution for reasons of religion or race (the Recommendation).
(2) The Reviewer erred in law in making the Recommendation, in that he:
(a) misapplied the test for determining whether the Applicant is a person to whom Australia has obligations under the Convention; and
(b) failed to address an aspect of the Applicant’s claims
by failing to consider whether the Applicant had a well-founded fear of persecution in the reasonably foreseeable future as distinct from the present or immediate future.”
The applicant relies upon the amended application, the affidavit sworn by him on 31 July 2012 and in relation to which paragraphs 4 to 7 are struck out and an outline of submissions filed on 12 September 2012.
The first respondent relies upon a response filed on 23 May 2012 being in response to the initiating application and the first respondent’s submissions filed 14 September 2012. The first respondent urges the Court to dismiss the application with costs claiming that the application for judicial review does not establish any jurisdictional error in the decision of the second respondent dated 26 January 2012.
The applicant is a citizen of Afghanistan. He is a Shia Muslim of Hazara ethnicity. He claimed to be a refugee within the meaning of s.36 of the Migration Act 1958 (Cth) (‘the Act’) by reason of his religion, ethnicity and putative political opinion and membership of a particular social group.
The applicant arrived in Australia on 30 April 2010 by boat that was intercepted and taken to Christmas Island. On 10 October 2010, the applicant made a request for a refugee status assessment. On 7 January 2011, the Department of Immigration and Citizenship (‘the Department’) notified the applicant of its negative assessment of his application. By request for independent merits review dated 2 February 2011, the applicant applied for independent merits review of the decision of the Department. In a lengthy and comprehensive statement of reasons dated 26 January 2012, the second respondent 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 (‘Refugee Convention’).
The Independent Merits Reviewer (‘the Reviewer’) had before him on a consideration of the matter:
a)the relevant material from the Independent Protection Assessment Office (‘IPAO’)/ Department’s file relating to the applicant;
b)the applicant’s claims to engage Australia’s protection obligations under the Refugee Convention; and
c)submissions from the applicant’s agent dated 2 June 2011. In addition, the applicant was interviewed at the Curtin Detention Centre on 9 June 2011. His adviser was present at this interview and it was conducted with the assistance of an interpreter in the Hazaragi language.
The Reviewer had also before him significant country information, including that cited in the delegate of the first respondent’s (‘the Delegate’) decision, the material submitted by the applicant and his adviser and the various material to which reference was made by the reviewer in the statement of reasons.
The applicant’s claims
An early interview was conducted by an officer of the Department, who made a handwritten record of that interview on 13 May 2010. In that entry interview, the applicant claimed to be born in Afghanistan, but to have been living in Pakistan since he was around five years of age. He claimed that his father told him there was a conflict between his family and neighbours in the same village over farming land, which led to the death of two of his father’s brothers.
He claimed that about seven or eight years earlier, his father had returned to Afghanistan and was killed when a rocket struck the vehicle in which he was travelling. His father was, at the time, returning from Bamyan province toward Kandahar. He claimed he feared returning to Afghanistan because the Taliban were targeting Hazara people and killing them.
The applicant also made claims concerning his experiences whilst living in Pakistan. Although the applicant made numerous claims with respect to the time he spent residing in Pakistan, the Reviewer accepted that he was a citizen of Afghanistan and was satisfied that the applicant did not have any right to enter Pakistan legally. He found no evidence before him that the applicant had a right to enter and reside in Pakistan or another country other than Afghanistan. Accordingly, the Reviewer found the applicant did not have the effective protection of another country.
In a statutory declaration filed with the Department and dated 10 October 2010, the applicant maintained his earlier claims. In a written submission dated 2 June 2011, the applicant’s adviser placed before the Reviewer a detailed body of country information concerning the position of Hazaras living in Afghanistan.
At the interview, the applicant repeated his claims stating that he had not returned to Afghanistan since his departure at about aged five years, when he moved to Pakistan from Bamyan province. The applicant claimed the situation to be worse in Afghanistan than in Pakistan. He said that in Afghanistan, the Taliban were killing Hazaras and Shias. He claimed to have knowledge of that from what he had heard and read.
The applicant claimed specifically that Bamyan province belongs to the Taliban and he has learnt from the internet and he understands that the persecution of Hazaras continues there.
Country information
The Reviewer considered country information as cited in the delegate’s decision; the material submitted by the applicant and his adviser; and the material to which he made reference in his statement of reasons as researched by him, and put to the applicant that country information. He noted, in his statement of reasons at paragraph 77 the following:
“There are many reports assessing the available information about the conditions in Afghanistan. One of the challenges faced by the reviewer is determining their currency, accuracy, reliability and authority.”
The Reviewer put to the applicant that country information suggested that the situation for Hazaras was quite stable and that there was no official discrimination of Hazaras. The applicant was invited to comment. He claimed that there was nowhere for him to go in Afghanistan, that he was not able to go there and take arms against the various groups and that he could not live without any support there. He claimed he did not want to kill anyone or to be killed. The Reviewer noted to the applicant that the areas occupied by Hazaras were relatively secure and that since the end of the Taliban regime the situation for Hazaras had improved and that there was not a lot of evidence to suggest that Hazaras were specifically targeted by groups like the Taliban. The Reviewer also referred to the United Nations High Commissioner for Refugees (‘UNHCR’) reports that suggested the security situation fluctuated from region to region and changed over time. The applicant was invited to comment. The applicant said he did not have any recognition in Afghanistan. That if he went there he would be a refugee. The Reviewer noted to the applicant that it had been reported that in relation to Bamyan province, a new governor was elected in 2010 and that the province was quite peaceful and progressive. The Reviewer noted that the report also acknowledged some violence that spilled into the province but provided an essentially positive outlook about the province. The applicant was invited to comment. He claimed that Taliban fighters were controlling the day-to-day living in the area and that the governor said that she fears the Taliban groups will attack as soon as possible. The Reviewer noted reports of the Department of Foreign Affairs and Trade from late 2010 that stated that the UNHCR reported that refugees were being returned to provinces in Afghanistan where they were not born and raised, and that quite a number were choosing to go to Bamyan. A number of these people had spent some time in Pakistan. The applicant was invited to comment. The applicant said that those who returned to Bamyan province may have some family contacts there, and it may be that they can live there. The Reviewer suggested to the applicant that the report suggested that they did not have family there. Again, the applicant was invited to comment. He said that he has no one there.
The Reviewer extracted items of country information. He described some, as in paragraph 78 of his reasons, as “[useful] general and historical background information”. Others, he described in paragraph 79 as “[general] background information about the situation in Afghanistan”. He noted reports of Taliban activity in December 2008 and in May 2011 and in respect of the latter noted that reports of Taliban activity tend to support the conclusion that the Taliban are not targeting particular ethnic groups, but rather those who assist the government or foreign forces. His consideration of country information was extensive. He noted that country information stated that during the Taliban regime from 1996 to 2001 the Hazaras were subject to ethnically motivated violence. He noted further information that provided, however, that the approach of the Taliban may have changed. He acknowledged material indicating the armed conflict in Afghanistan had intensified, that civilian casualties had increased and that instability continued.
The Reviewer noted, in particular, in respect of Hazaras and as set out in paragraphs 93 to 99 inclusive of the statement of reasons, that country information provided a “clear picture” of a range of views and sources in relation to the position of Hazaras and whether they faced persecution. In particular, he considered Professor William Maley’s paper entitled “On the position of the Hazara minority in Afghanistan” (December 2010) including Professor Maley’s comments that “There is little reason to be confident that the general situation in Afghanistan will take a turn for the better in the foreseeable future.” And further:
“an assessment of the general situation for Hazaras, namely that the scale of persecution and abuse of power in Afghanistan tends to be under-reported”
when considering and assessing the claims made by the applicant against the country information available to him. In respect of Professor Maley’s comments he adopted Professor Maley’s conclusion that regard not be had to “temporary, insignificant or cosmetic changes” when determining whether a fear of persecution for a Convention reason is well-founded.
The Reviewer also considered Bamyan and country information relevant thereto. In particular, that available in 2010 and 2011which noted that Bamyan was a secure province and that its security was:
“community based and therefore highly resilient.”
The Reviewer also considered country information on returnees to Afghanistan and again compared contrasting reports. He found that the country information did not support a finding that returnees from a western country or failed asylum seekers have any particular political opinion attributed to them.
Reviewer’s findings
The Reviewer accepted that the applicant was a national of Afghanistan, a Hazara and a Shiite Muslim. He noted that the basis of the applicant’s various claims were raised explicitly or implicitly by him. He found that the serious nature of the feared harm amounted to persecution. The Reviewer found, that there was a land dispute that caused problems for the applicant’s family over 30 years ago and that any actions taken in relation to such a dispute without more was not a fear of persecution based on a Refugee Convention ground. The Reviewer rejected any claim for protection by the applicant based on the land dispute.
Having considered the evidence and country information the Reviewer did not find returnees from the west are from that fact alone imputed with political views or opinions that are anti-Taliban. The Reviewer found that a Refugee Convention nexus did not exist. The Reviewer also inferred a claim from the material before him that a political opinion may be imputed to the applicant on the basis that he is a failed asylum seeker. That claim he found to be similar in its scope to the claim that a political opinion may be imputed to him on the basis that he is a returnee from the west. The Reviewer found, having considered the material in relation to this claim, that there was no information that suggested that failed asylum seekers were imputed with any political opinion from the fact alone that they are failed asylum seekers. The Reviewer accordingly found a Refugee Convention nexus did not exist.
The Reviewer said at paragraph 127 of his reasons:
“The reviewer accepts from listening to the claimant, reading material relating to his earlier interviews and considering his responses that the claimant’s evidence is generally credible. For example, he candidly acknowledged that he has not lived in Afghanistan for many years and that his knowledge of life in his country of birth and of the current security, political and social conditions is based on information he obtained from others and the internet. This has the impact that much of the claimant’s knowledge about Afghanistan is not based on his own experiences. The reviewer finds that his fears are derived by combining information he obtained from those sources with his family’s history and circumstances, some of which is also based on inference or assumption.”
The Reviewer found that the applicant’s claims about the circumstances of his father’s death were consistent with the country information, which was to the effect the Taliban activity on those roads compromised the safety of those who travelled on them. The Reviewer found that the applicant’s father died as a consequence of being in a vehicle that was destroyed on being struck by a rocket on a road near Khandahar. The evidence did not support a finding as to who fired the rocket or what their motivations were.
The Reviewer then went on to consider the applicant’s claims arising from being a Hazara and a Shia. He noted that these claims were based on the Refugee Convention grounds of race and religion. The Reviewer noted that he had regard to country information that described the experiences of the Hazara people from an historical perspective, particularly the conflict with the Taliban in more recent years. He noted, in particular, Professor Maley’s views amongst the other available country information which pointed to a complex society that is driven not only by current circumstances and relationships but by those that existed in historical times. He noted there were, however, consistent reports from the UNHCR and other organisations which have been observing the situation in Afghanistan and, in particular, for Hazaras since the western intervention, that reported there is no evidence of a campaign by the Taliban and their supporters to specifically target Hazaras. Rather, the Taliban currently target Afghans who identify as supporters of the government, supporters of the western presence in Afghanistan or those who in some other way are seen as being tainted by westernisation. The Reviewer noted that having considered the evidence he found that:
“The claimant is not a person who has such a profile. He is, as the reviewer has found, an Hazari Shia, who was born in Bamyan, without overt political affiliations, not engaged in an occupational profession of a nature that attracts the interests of the Taliban and who has not lived in Afghanistan for many years.”
The Reviewer noted after considering the country information in respect of Bamyan province in particular, that Hazaras were the major ethnic group living in the province and that the applicant, as a Shia, would be a member of the major religious group in the province. In particular, the Reviewer said in respect of the country information that he concluded there were:
“No particular security concerns in Bamyan and under the leadership of its current governor improvements have been made in the areas of governance, security and infrastructure….[and that there was not a] real chance of the claimant being persecuted in Bamyan for reason of him being an Hazari and Shia.”
The Reviewer then went on to consider what might happen to the applicant if he returned to Afghanistan now or in the reasonably foreseeable future, with particular regard to the death of his father some seven or eight years before. Again, the Reviewer found the applicant did not face a real chance of being harmed by reason of his race or religion now or in the reasonably foreseeable future.
The Reviewer identified further claims arising from the material before him, specifically whether the applicant had a well-founded fear of persecution arising from his membership of a particular social group. He was not persuaded that the applicant faced persecution now or in the reasonably foreseeable future by reason of these memberships.
Consideration
The applicant submits to the Court that the reasons for decision of the Reviewer reveal a failure to address the reasonably foreseeable future in the context of the claims made. The applicant says that whilst the reasons contain, on more than one occasion, a statement of the necessary test, it is the application of the test which is problematic and which has led the Reviewer into jurisdictional error.
In essence, the applicant argues that the Reviewer formulated the correct test to be applied but then failed to apply it in his failure to address the claims of the applicant from the perspective of the reasonably foreseeable future. The first respondent submits that the circumstances of this application do not favour a finding of error in this connection.
The proper approach to the issue of textual analysis raised by this application is as set out by the High Court in the Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at paragraph 272 per Brennan CJ, Toohey, McHugh and Gummow JJ:
“[The] propositions are well settled. They recognise the reality that the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed. In the present context, any court reviewing a decision upon refugee status must beware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision.”
In determining whether a person is a refugee within the meaning of the Refugee Convention the decision-maker is required to assess whether the fear is “well-founded”. That analysis will require the decision-maker to determine the likelihood of future harm. The High Court accepts that in assessing the likelihood of future harm a consideration of past persecution is relevant. (Minister for Immigration and Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559 at 572, per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ).
I find the Reviewer conducted a careful analysis of the country information, acknowledging the great volume of material to be canvassed and specifically acknowledging its differing and at times contrasting content. The Reviewer noted the significant task which he was required to undertake, a task which he thoroughly and expansively engaged in. The reasons must be read as a whole, and the claim of the applicant that there was jurisdictional error cannot succeed.
The substantive findings made by the Reviewer were based upon the evidence before him and the extensive country information. That country information allowed the Reviewer to make an assessment of the future whilst acknowledging that it was unpredictable. The Reviewer engaged with the diversity of country information, and by his own research developed it. The applicant, upon the hearing, was included in the process. The applicant puts before this Court no changed circumstance that the Reviewer failed to consider, nor claim that the Reviewer failed to consider.
The country information did not predict what the future holds, and the Reviewer conducted his assessment on the basis of the evidence before him and how it sat with the country information, being both historical background information, general information, current conditions and statements contained in that information which were forward-looking.
The analysis of the Reviewer is itself adequately forward-looking and corresponds with the country information as described in the reasons. The Reviewer looked, in particular, to the security situation in the Bamyan province. That situation into the future was assessed on the basis of the country information available to the Reviewer at the present time, and that information and evidence of the applicant supported the findings made by the Reviewer.
The applicant made no claim of present persecution in Afghanistan. His claimed fear arose, rather, from the reports of others and material obtained from the internet. The Reviewer was thus left to assess the claims primarily on the basis of relevant country information. The Reviewer took a balanced approach to that country information, recording the range of views expressed within it and the volatility of the political and security situation in Afghanistan. The Reviewer expressly made findings as to the reasonable foreseeability of harm in the provision of his reasons.
In Minister for Immigration and Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559 at page 575 per Brennan CJ and Dawson, Toohey, Gaudron, McHugh and Gummow JJ, the High Court said:
“Determining whether there is a real chance that something will occur requires an estimation of the likelihood that one or more events will give rise to the occurrence of that thing. In many, if not most cases, determining what is likely to occur in the future will require findings as to what has occurred in the past because what has occurred in the past is likely to be the most reliable guide as to what will happen in the future. It is therefore ordinarily an integral part of the process of making a determination concerning the chance of something occurring in the future that conclusions are formed concerning past events.”
It is clear from the reasons for decision, that the Reviewer did rely on the large degree of country information before him in making his assessment of the future, and that the conclusion reached by him was open to him on the basis of the material used. As to that material I note:
“Both the choice and the assessment of the weight of such material were matters for the Tribunal. The Court cannot substitute its own view of the material, even if it had a different view from that reached by the Tribunal.”
(NAHI v Minister For Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at paragraph 13) per Gray, Tamberlin and Lander JJ).
The application shall be dismissed and an order for costs made against the applicant.
I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Hartnett FM
Date: 12 October 2012
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