MZZDC v Minister for Immigration

[2013] FCCA 1395

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZZDC v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 1395

Catchwords:
MIGRATION – Judicial review of Refugee Review Tribunal decision – Protection (Class XA) visa– no error of law – no apprehended bias – no jurisdictional error – application dismissed.

Legislation:  

Migration Act 1958 (Cth), ss.5(1), 36(2)(aa), 91R(1)(b), 424(A)(3)(a)

1951 Convention Relating to the Status of Refugees

1967 Protocol Relating to the Status of Refugees

Appellant S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71
Applicant NABD of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 216 ALR 1

Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184
NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10

SZATV v Minister for Immigration and Citizenship (2007) 237 ALR 634

Applicant: MZZDC

First Respondent: MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS AND CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: MLG 1509 of 2012

Judgment of: Judge Hartnett

Hearing date: 20 May 2013

Delivered at: Melbourne

Delivered on: 20 September 2013

REPRESENTATION

Counsel for the Applicant: Ms Burt

Solicitors for the Applicant: Victoria Legal Aid

Counsel for the First Respondent: Mr Reilly

Solicitors for the First Respondent: Sparke Helmore

THE COURT ORDERS THAT:

1. The name of the First Respondent be changed to ‘Minister for Immigration, Multicultural Affairs and Citizenship’.

2. The Application filed 27 November 2012 is dismissed.

3. The Applicant pay the costs of the First Respondent fixed in the sum of $6,646.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT MELBOURNE

MLG 1509 of 2012

MZZDC

Applicant

And

MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for judicial review of a decision of the Refugee Review Tribunal (‘the Tribunal’) dated 23 October 2012 which affirmed a decision of a Delegate of the First Respondent (‘the Delegate’) to refuse to grant the Applicant a Protection (Class XA) visa.

2. The grounds of the application are as set out in the Amended Application filed 17 April 2013. They number five grounds. The second ground of review as set out in the Amended Application was not relied upon by the Applicant. The Applicant proceeded with the remaining four grounds of the Application which are as follows:-

   “1. The second respondent failed to consider an integer of the applicant’s claim, namely that as a Shia education worker, the applicant would be persecuted by the Taliban.

   Particulars

   a. The applicant made a claim that he would be targeted because he is a Shia worker in the education field.

   b. The claim the applicant made expressly linked his work and his religion as a reason he would be targeted. He explained the motivation of the Taliban, and the fact that his work was at a prominent Shia Institution.

   c. The claim was never addressed, notwithstanding that the second respondent made findings about education workers, and Hazara education workers. It was necessary to consider the religious facet of the applicant’s express claim.

   As an alternative, the second respondent failed to actually cumulatively consider the two claims made by the applicant, that he would be targeted as a Shia and as an education worker. The second respondent failed to apply the law correctly in this regard.

   …

   3. The second respondent erred at law in finding that the applicant could only stay in Kabul and he would be safe, falling foul of the principles in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs 216 CLR 473.

   Particulars

   a. The applicant told the Tribunal that he had travelled in order to attend a family wedding and visit his Uncle in Jaghori.

   b. The second respondent expects that the applicant would not leave Kabul because he did not have immediate family outside Kabul and he did not need to leave Kabul for work.

   c. The second respondent expects the applicant to modify his behaviour in an unreasonable way, by expecting him not to travel outside Kabul.

   4.  The second respondent demonstrated apprehended bias in the hearing with the applicant.

   Particulars

   a. The second respondent demonstrated apprehended bias by failing to fairly put country information to the applicant.

   b. The second respondent unfairly put the information contained in the UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Afghanistan dated 17 December 2010.

   c. In portraying the information in this manner the second respondent mislead the applicant in a way that demonstrates apprehended bias.

   Alternatively, the second respondent’s analysis was unreasonable, or illogical to the extent that it constituted a jurisdictional error.

   5. The second respondent erred at law when considering the applicant’s complementary protection claims.

   Particulars

   a. The second respondent links his appraisal of whether the applicant has a real risk of significant harm, to the traditional Convention based grounds.

   b. This is an error of law, as no nexus to Convention grounds is required by the complementary protection obligation.”

The Applicant’s Claims

1. The Applicant is a citizen of Afghanistan. He arrived on Christmas Island by boat on 21 February 2012. On 5 June 2012, he applied for a Protection (Class XA) visa. On 25 July 2012, a Delegate of the First Respondent (‘the Delegate’) refused the application. The Applicant applied to the Tribunal for review on 2 August 2012. The Tribunal held a hearing on 24 September 2012.

2. The Applicant claimed to be an ethnic Hazara and a Shia Muslim, and to fear harm from the Taliban. He claimed to have been born in Jaghori, Ghazni province in 1985, and to have lived in Iran from 1987 to 2008. There he obtained a degree in computer science at the Sinai University. In 2008, he moved to Kabul to work as an information technology officer at a university.

3. The Applicant claimed “that the Taliban are particularly interested in university staff and that it is dangerous for them on the roads”. In 2011, a university employee was killed on the road. The Applicant believed this man to be a Hazara Shia. The Applicant claimed that university workers changed their dress from work to home so they could not be recognised as professionals or education personnel. Workers from the university were also careful with their travel arrangements. When the Applicant travelled, he travelled with other people who did not readily know much about one another, in order to protect each other’s identities.  

4. The Applicant claimed that in November 2011, he travelled to Jaghori to visit his uncle at the time of the religious festival Eid-qorbant. The Second Respondent recorded in Decision Record dated 23 October 2012 (‘the Decision Record’) at paragraph 24, that the Applicant “had a one week break from university and travelled to Jaghori to visit his uncle”. The Applicant claimed to have changed cars en route to lessen the chance of being identified as an education worker. The Taliban searched the first car the Applicant travelled in, after he had switched cars. The Taliban stopped the car and said they were looking for the Applicant; all passengers were body searched and beaten.

5. The Applicant claimed that after the November 2011 episode he visited his family in Iran for a week, although he had a valid visa for a month, before returning to Kabul for three months, before travelling to Australia.

6. The Applicant also claimed that whilst in Kabul he went to Wazir Akbar Khan to pay for the university’s internet connection. The Applicant described this area as one of the “most dangerous parts” of the city. A few hours later the Taliban blew up the premises using a suicide bomber. The Applicant claimed that he had to travel to this area at least once a month for work and that it is an area “frequently targeted for attacks due to the high number of foreign embassies and government offices there” (Applicant’s RRT Statement dated 10 September 2012). The Applicant claimed this put him at very high risk of being killed in an attack.

7. The Applicant claimed that he would be persecuted on the basis of being a supporter of the West (a clean shaven man of Western appearance) and an educated Hazara university worker. The Applicant claimed that the “Taliban are known to be against higher education” (Applicant’s Statement of Claims dated 5 June 2012 at paragraph 10) and that “the Taliban don’t like Hazara Shia and when they are also educated, they target them more” (Applicant’s Statement of Claims dated 5 June 2012 at paragraph 11). He claimed that “as an educated Hazara Shi’a he is at greater risk of harm from the Taliban” (Protection (Class XA) Visa Decision Record at paragraph 8). He stated “I … feared that my employment at such a prominent University, run by a prominent Shia religious leader, could make me a target” (Applicant’s RRT Statement dated 10 September 2012 at paragraph 16).

8. An additional submission was made to the Tribunal prior to the Applicant appearing before it and dated 14 September 2012. It was submitted that in reference to the bombings and attacks in Wazir Akbar Khan that this was designed to draw attention to the Applicant’s  need to travel to these dangerous areas as part of his employment as a university information technology worker rather than asserting that the attacks were against education institutions. The Applicant claimed to be compelled to travel frequently to Instatelecom which provided information technology services to the university. A company brochure was attached indicating that the company was based on the main road of Wazir Akbar Khan and that it was plausible that the Applicant could come to the attention of the Taliban through his visit there. It was submitted that the Applicant would also be at risk because of his membership of a particular social group of “education personnel” and because of his employment with a prominent Shia religious institution. The submission included references to country information on the security situation in Kabul, Taliban targeting of those involved in education, sectarian attacks in Kabul and the level of State protection for Hazaras in Kabul. It was also submitted that violence from Kuchis in Kabul constituted a considerable risk for the applicant especially given his home was near to clashes in 2010. Also included with this submission were:-

   a)an additional statement of the Applicant dated 10 September 2012. In this statement, inter alia, the Applicant claimed that he did know one man in the first car (Mubarek) and that at the Ghojur bazaar this man warned him that men in the first car had been beaten and asked if they were the Applicant. The other men then came over and talked to him as well;

   b)a UNESCO article dated 10 February 2010, “Education under Attack 2010 – Afghanistan”; and

   c)a letter and translation of a letter from a Commander of Lashkar-e-Jhangvi threatening Shias.

   All of the above was referred to in paragraph 27 of the Decision Record.

The Tribunal hearing

1. The Applicant appeared before the Tribunal on 24 September 2012 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Dari and English languages. The Applicant was represented in relation to the review by his registered migration agent.

2. During the hearing the Tribunal put a number of its concerns with the evidence of the Applicant to him for comment.  At paragraphs 36 to 39 of the Decision Record the Tribunal referred to this as follows:-

   “36. …[It] put to the claimant for comment the substance of county information … that indicated that he may not face a real chance of persecution or a real risk of significant harm on account of being a Hazara in Kabul. He said the reality was different and that the authorities could not protect him. His uncle had told him that Afghanistan was not safe for him. …[The Tribunal] put to the claimant for comment the substance of country information … that indicated that he may not face a real chance of persecution or a real risk of significant harm on account of being a Shia in Kabul. He said that his was a personal issue that meant he was in danger. …[The Tribunal] also put to him that there was also information contained in a Danish Immigration Service report of March this year …[that] described the security situation in Kabul as relatively good or safe and that it was unlikely that the Taliban would make it a priority or have the capacity to track down low profile persons in the city. …[The Tribunal] said he seemed to have a very low profile so that may make … [it] doubt that they would have been interested in him. He said they were looking for him because he was not an ordinary person and that he would not have left Kabul as he had a good salary if his life was not in danger.

   37. … [It] also put to the applicant for comment that the UNHCR Eligibility Guidelines do not mention university workers as having a particular risk profile in Afghanistan and that [the Tribunal] had not identified any reports of attacks in Kabul itself targeted at those in education. …[The Tribunal] stated that this may suggest that he did not have a well-founded fear of persecution for being an “educated Hazara university worker” or “education personnel” or face a real risk of significant harm for that reason. He said there were many cases where students were stopped and beaten and that people did not carry laptops for that reason. It was clear that the Taliban were opposed to educated. …[The Tribunal] stated that he did not seem to have a need to travel outside Kabul as he did not have any immediate family in the rest of Afghanistan and he stated he had to travel to Jaghori as he had family there. He said the Taliban could carry out attacks in Kabul.

   38. [The Tribunal] asked the applicant whether he had a fear of the Kuchis and he said that Kuchis came into Hazara areas and in 2010 and 2011 there had been fighting. …[The Tribunal] stated that …[it] had not come across any reports of violence between Kuchis and Hazaras in Kabul since 2010. …[The Tribunal] commented that though he had claimed to live near where this occurred he had not made any claims of being directly affected. He said the government forces were trying to stop the violence but he would be affected if there was such fighting.

   39. [The Tribunal] stated to the applicant that he had claimed that he would be at risk of harm because he would be imputed with a political opinion as a supporter of the West (as a clean shaven man with Western appearance). …[The Tribunal] put that there was country information that suggested that he would not be at risk for that reason. …[The Tribunal] noted that for example, in March 2010, the Department of Foreign Affairs and Trade stated in relation to Hazara returnees to Afghanistan that ‘[l]imited employment and advancement opportunities also inhibited returning refugees’ but added that ‘there was no significant protection issues for returnees’. … [The Tribunal] noted that DFAT had earlier reported that their contacts did not believe that Hazaras would be targeted because they had sought asylum in the West. … [The Tribunal] stated that given he had recently lived in Kabul for several years without being harmed this may also make … [it] think that. He said that finding a job would not be a problem but that his life would not be safe due to the Taliban looking for him.”

3. In further response to the concerns expressed by the Tribunal at the hearing the migration agent made an oral submission on behalf of the Applicant. Thereafter and on 8 October 2012, the migration agent provided a further written submission.

Findings of the Tribunal

1. The Tribunal canvassed extensive country information, the choice of same and weight to be given to it, being a matter for the Tribunal. The Tribunal’s Decision Record contained relevantly the following findings, at paragraphs 65 to 72 that:-

   “Hazara Shia and imputed political opinion claims

   65. The overall weight of the country information indicates that there is no evidence of a general campaign by the Taliban insurgency to target Hazara Shias or that Hazaras are being persecuted on a consistent basis. DFAT have recently stated that Hazaras considering emigration were principally influenced by long term economic considerations rather than any immediate risk of persecution. …[The Tribunal took] into account also that the latest UNHCR Eligibility Guidelines set out above do not make mention of Hazaras and Shias as being groups generally subjected to persecution by reasons of their race and religion but that an assessment of their individual circumstances is required. Nor does the country information indicate that Hazaras are being discriminated against in a manner that would amount to serious harm for the purposes of s.91R(1)(b) of the Act; it does not indicate that they are denied employment opportunities or access to essential services or discriminated against in any other way amounting to serious harm. The US State Department has also reported that Shia generally were free to participate fully in public life.

   66. Whilst there is some information (such as the papers written by Professor Maley cited above and the information submitted by the agent including the letter from the commander of Lashkar-e-Jhangvi) which paint a difficult picture in terms of the safety of Hazara Shias generally, …[The Tribunal gave] preference to the weight and authority of sources such as DFAT and the UNHCR in making …[its] assessment. Whilst Professor Maley has noted the limitations that these bodies have in conducting field research of their own, given the tight security constraints under which they operate, it would also have to be said the conditions apply to academics with expertise in the country. …[The Tribunal also gave] the DFAT report of March 2012 more weight because it is the most recent. …[The Tribunal also took] into account the comments of Professor Amin Saikal that Hazara provinces are amongst the safest in the country and that Hazaras are not at more risk than other groups. …[The Tribunal accepts] that there exists uncertainty as to the political future of Afghanistan and the role of the Taliban within it but in assessing the real chance of the applicant being persecuted in the reasonably foreseeable future have given greater weight to the above reports of DFAT, the UNHCR and Professor Saikal as to the situation of the Hazaras Shias that show that they are not being consistently or particularly targeted. …[The Tribunal also came] to the same assessment in considering whether there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Afghanistan that there is real risk that he will suffer significant harm.

   67. …[The Tribunal] considered carefully the country information submitted by the applicant and his agents. In particular …[the Tribunal took] into account the reports of the bomb blasts in Kabul and Mazar-e-Sharif where it appears that Shias were deliberately targeted by a Pakistani based extremist group, Lashkar-e-Jhangvi. …[The Tribunal did] not come across information that indicates that the Pakistani extremist group, Lashkar-e-Jhangvi have committed previous terrorist attacks of this nature in Afghanistan or that they have repeated such attacks. …[The Tribunal also took] into account country information that said that these attacks were considered “rare” and unlikely to lead to a sectarian war – see above comments from the US Ambassador and a Hazara MP. Whilst these attacks were horrific and targeted at Shias their unprecedented nature and the lack of Taliban involvement mean they do not alter …[the Tribunal’s] assessment Hazara Shias, per se, face a real chance of persecution, now or in the reasonably foreseeable future. For the same reasons, …[the Tribunal has] come to the conclusion that Hazara Shias per se, as a necessary and foreseeable consequence of being removed from Australia to Afghanistan do not face a real risk of suffering significant harm.

   68. However, as recommended by the UNHCR, it is necessary to consider the individual merits of each case. …[The Tribunal accepts] that the applicant was employed by (sic) as an IT worker in two universities in Kabul including one supervised by a Shia Ayatollah. The applicant has been consistent in his account of this and has provided documentary evidence supporting his employment and qualifications. …[The Tribunal accepts] that as part of his duties he has travelled around to different parts of Kabul and that on a number of occasions he has travelled to Jaghori to visit family members. However, …[the Tribunal does not] accept his central claim that he was targeted by the Taliban on a visit to Jaghori and that the Taliban have a continuing interest in him. …[The Tribunal does]  not find him credible on these matters for the following reasons:

   ● The applicant’s account is inconsistent with the weight of the country information concerning the Taliban’s interest in low-profile persons. The applicant’s profile is very limited. Whilst …[the Tribunal accepts] that he worked at a Shia university his employment consisted merely of being an IT support worker who would travel around different parts of Kabul in the course of his duties. …[The Tribunal notes] as submitted by the agent that the country information contained in the DIS report does at one point refer to an AIHRC report that states that the Taliban had previously targeted low profile people in Kabul in 2007-09. However, …[the Tribunal took] into account that the applicant’s claim arises from a claimed incident in November 2011 so this information is of little weight. Furthermore other authorities cited by the Danish such as the UNAMA do not support that low profile persons are targeted. The UNAMA stated that “it did not find it likely that the Taliban would make it a priority or have the capacity to track down low profile persons in the city”. The CPAU are reported to have stated that they “had never come across any cases where the Taliban had gone after low profile persons in the city.” Furthermore, …[the Tribunal has] not come  across any independent country information showing that the Taliban have targeted those involved in education in Kabul and the UNHCR guidelines do not mention university workers as having a particular risk profile in Afghanistan. Whilst the applicant in the hearing referred to the death of a university employee who he said was a Hazara employee from Bamiyan university who was killed delivering books from Kabul to Bamiyan a year ago, he was unable to recall the name of this person and there is no indication from the applicant’s claims that his circumstances were similar given that he had not claimed to have been carrying educational materials. …[The Tribunal does] not accept that if such an incident occurred that it demonstrates that he faces a real chance of persecution or that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to Afghanistan that he faces a real risk of significant harm or that it supports his claims to have been targeted.

   ● On the applicant’s own evidence he stayed in Afghanistan for a further three months (other than a short period when he travelled to Iran) and yet he was not subjected to any adverse attention from the Taliban. …[The Tribunal notes] that the applicant says that he did not go out much during this period but he would have travelled to and from work. That nothing at all happened to him during this period but he would have travelled to and from work. That nothing at all happened to him during this period further supports that he was of no interest to them and was not targeted as claimed during his visit to Jaghori.

   ● Despite his IT employment, the applicant did not request his employer to take down a photo of him showing him as being employed at the university which is inconsistent with him being concerned for his safety on (sic) in the manner that he has claimed. When this was put to him for comment at the hearing he said that it was only when he arrived in Australia that he realised it should have been taken down and that he kept it there to prove that he worked at the university. However, as put to the applicant at the hearing given his IT skills he could have saved such evidence electronically to an email account and …[the Tribunal does] not accept his explanation.  …[The Tribunal accepts] that the Taliban may not be particularly IT savvy, however the applicant’s failure to request the removal of his picture given the grave danger he claimed he was in is a further reason to reject his claim.

   69. Accordingly, …[the Tribunal does] not accept that the applicant whilst travelling to Jaghori from Kabul was the subject of any interest from the Taliban. …[The Tribunal does] not accept that a car he had been travelling in was stopped by the Taliban who had a photograph of him and that they asked for his whereabouts. …[The Tribunal does] not accept the passengers in the car were searched and beaten. [The Tribunal does] not accept that the applicant whilst at bazaar was told this by the passengers in the car.

   Kuchis

   70. Whilst it was submitted that the applicant would be in danger as a result of conflict between Kuchis and Hazaras, …[the Tribunal has] taken into account that the applicant has not claimed to have ever been harmed or targeted as a result of this. Whilst …[the Tribunal accepts] that there has been recent conflict between Hazaras and Kuchis outside Kabul (in Maidan Wardak) …[the Tribunal has] not identified any evidence of any recent conflict between the two groups in Kabul since the middle of 2010. …[The Tribunal took] into account that the applicant lived near where these clashes occurred in 2010, but given these matters, …[the Tribunal does] not accept that the applicant, now or in the reasonable foreseeable future faces a real chance of persecution from the Kuchis. …[The Tribunal further finds] that there are not substantial grounds for believing that as a necessary and foreseeable consequence of him being removed from Australia to Afghanistan that there is a real risk of the applicant suffering significant harm from the Kuchis for these same reasons.

   Imputed political opinion/ particular social groups

   71. It was claimed that the applicant would be at risk because he would be imputed as a support of the West as he was a clean shaven man with a Western appearance. However, the applicant lived in Kabul for several years and was not subjected to any adverse attention by anyone whilst he was there. Based on this information, …[the Tribunal therefore found] that the applicant does not face a real chance of persecution, now or in the reasonably foreseeable future on account of being a clean shaven man with a Western appearance which …[the Tribunal accepts] may constitute a particular social group and of which the applicant would be a member of.  …[The Tribunal further found] that there are not substantial grounds for believing that as a necessary and foreseeable consequence of him being removed from Australia to Afghanistan that there is a real risk of the applicant suffering significant harm on this basis for these same reasons.

   72. …[The Tribunal] also considered whether the applicant would be at risk on account of account of (sic) being a returnee or a failed asylum seeker from Australia or a Western country. …[The Tribunal has] considered the reports such as those of the Edmund Rice Centre as set out above. However in making …[the Tribunal’s] assessment, …[the Tribunal gave] greater weight to the report of DFAT in March 2012 that stated there were no significant protection issues for returnees and to country information that there have been a larger number of returnees to Afghanistan in the last decade. …[The Tribunal gave] preference to the DFAT reports because they are specifically charged with giving advice to the Australian government on such matters and the latest report is more recent. Based on this information, …[the Tribunal therefore found] that the applicant does not face a real chance of persecution, now or in the reasonably foreseeable future on account of being a returnee or a failed asylum seeker from Australia or a Western country both of which …[the Tribunal accepts] are particular social groups and of which the applicant would be members of. …[The Tribunal further found] that there are not substantial grounds for believing that as a necessary and foreseeable consequence of him being removed from Australia to Afghanistan that there is a real risk of the applicant suffering significant harm on these bases for these same reasons.

   73. …[The Tribunal accepts] that the applicant has worked for two universities in the past, one of which was a prominent Shia institution. Whilst there is evidence of the Taliban targeting education workers outside Kabul (the UNHCR article of 10 February 2010 submitted by the agent supports this), there is no evidence in this report and …[the Tribunal] have not come across any information that indicates that university workers are being targeted in Kabul by the Taliban or anyone else. …[The Tribunal accepts] as part of his duties the applicant has travelled to different areas of Kabul (and will in the future) but as he indicate at the hearing he did not have to travel outside Kabul. …[The Tribunal does] not accept that he has been targeted in the past by the Taliban or is of any interest to them individually as he has claimed. If he returns to Kabul given his high level of education and employment experience, …[the Tribunal found] that he would be able to obtain similar work in a fairly rapid fashion and that any discrimination he may face will not amount to serious harm or significant harm.

   74. For these reasons, whilst, …[the Tribunal accepts] that “education personnel” and “educated Hazara university workers” are particular social groups and the applicant is a member of these groups, …[the Tribunal found] that he does not face a real chance of persecution now or in the reasonably foreseeable future on account of his membership of these groups. …[The Tribunal further found], for the same reasons, that there are not substantial grounds for believing that as a necessary and foreseeable consequence of him being removed from Australia to Afghanistan that there is a real risk of the applicant suffering significant harm on these bases.

   Kabul

   75. …[The Tribunal does] not accept that the applicant was caught up in an incident in Wazir Akbar Khan as claimed. In his statement the applicant stated that the place he had visited there was blown up by a Taliban security a few hours after he left. However, at the hearing when asked if there were any bombs he said they used RPGs but he could not remember any explosion. When asked what happened at the place he paid the bill and said he could not remember specifically. When it was put to him that his account was inconsistent he said that he meant there was firing and shooting but still this was inconsistent with his account in his statement and inconsistent with not recalling what had happened to the place. Due to such a fundamental inconsistency, …[the Tribunal does] not accept that the office he visited was blown up by a suicide bomber or that whilst he there that there was a gun fight involving the insurgents which he managed to escape.

   76. In making …[the] findings, …[the Tribunal has] taken into account that the applicant is from Kabul having spent several years there and that there is evidence of insurgency attacks there. Whilst …[the Tribunal accepts] that “relatively good or safe” is not the correct test as submitted by the agent, the information contained in the DIS report is of relevance in assessing the applicant’s circumstances and …[the Tribunal has] taken this report into account in terms of assessing the security situation. …[The Tribunal has] also taken into account that Kabul is a large city and that Hazara Shias are at least 25% of the population there. …[The Tribunal has] also taken into account that DFAT have noted (in September 2011) that their Hazara contacts have described Kabul as safe and had not raised claims of persecution although there was discrimination. …[The Tribunal accepts] that the applicant may as part of his duties need to travel to all parts of the cities but find that the chance that he will suffer persecution in doing so is remote. In doing so …[the Tribunal took] into account that he has not previously been involved in any security incident in the several years he was in the city. Whilst he may have family located in Jaghori these are not immediate family members and …[the Tribunal does] not accept that being restricted from travelling there because of the dangers of the Taliban or other groups operating in the roads leading there, in his individual circumstances, is serious harm or significant harm especially as he has no economic reason to do so. …[The Tribunal further found] that there are not substantial grounds for believing that as a necessary and foreseeable consequence of him being removed from Australia to Afghanistan that there is a real risk of the applicant suffering significant harm for these same reasons.

   Cumulative assessment

   77. Even when considering the applicant’s claims cumulatively, …[the Tribunal found] that he does not face a real chance of persecution, now or in the reasonably foreseeable future on account of his race, religion, imputed political opinion or membership of any particular social group from the Taliban, Lashkar-i-Jhangvi, Pastuns, Kuchis or any other group. His fear is not well-founded. Even when considered cumulatively, …[the Tribunal found] that there are not substantial grounds for believing that as a necessary and foreseeable consequences of him being removed from Australia to Afghanistan that there is a real risk of the applicant suffering significant harm.”

Consideration

As to ground one

1. The Applicant claims that the Tribunal erred in not addressing the Applicant’s claim to fear harm as a Shia and a Hazara education worker, especially given that he worked for a prominent Shia religious institution. The claim as put was that the Applicant feared harm as a member of a particular social group of “educational personnel in Afghanistan” (Applicant’s Submissions to Refugee Review Tribunal dated 14 September 2012 at paragraph 31). This was the claim that the Tribunal addressed at paragraphs 73 and 74 of the Decision Record.  The Tribunal was clearly aware that the Applicant was a Shia, and that one of the universities at which the Applicant worked was a prominent Shia institution, as it states at paragraph 73 of the Decision Record. The Tribunal addressed the claim as put by the Applicant. It is not a fair reading of the Tribunal’s Decision Record at paragraphs 73 and 74 to suggest that it was unaware that the Applicant claimed that there would be an extra risk to him because he was a Shia and a Hazara. Rather, the Tribunal reasoned that because on its findings the Applicant had not been targeted by the Taliban in the past, and was not of interest to them, and there was no country information indicating that the Taliban targeted university workers in Kabul, the Applicant’s claim to fear harm because of his membership of a social group of educational workers was not well founded. The Tribunal refers to the Applicant’s submission about fearing harm as an educational worker at paragraph 27 of the Decision Record, as set out in paragraph 10 of these Reasons. The overwhelming inference is thus that it was aware of this submission and rejected it when making its findings at paragraphs 73 and 74 of the Decision Record, as contained in paragraph 14 of these Reasons.

2. In Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184 French, Sackville and Hely JJ said at page 641 paragraph 47:-

   “47. The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons.  But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point.  It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected.  Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal’s review of the delegate’s decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.”

3. On a fair reading of the Tribunal’s Decision Record, it has addressed the claim put by the Applicant and it cannot be inferred that the claim was overlooked by the Tribunal because there is no specific reference to it by the Tribunal. As noted above, the Tribunal specifically refers to the submissions made by the Applicant’s migration agent in paragraph 27 of the Decision Record.  The Tribunal addressed the Applicant’s claims by firstly considering that he was a Hazara and Shia. The Tribunal then progressed through a consideration of other of the claims, including the Applicant’s membership of particular social groups as claimed, concluding with a consideration of the Applicant’s claims cumulatively. From its Decision Record, and as submitted by the First Respondent it is clear that the Tribunal understood that the Applicant was both a Hazara and Shia and accepted he had worked in universities, including one the Applicant claimed was associated with a particular ayatollah in Afghanistan. It cannot be said, on a fair reading of the Tribunal’s Decision Record, that the Tribunal overlooked or failed to deal with the claim that the Applicant was a Shia and an educational worker.  The Tribunal also stated that it had considered the Applicant’s claims cumulatively and did not find the Applicant faced a real chance of persecution for reason of his membership of any particular social group. 

As to ground three

1. The third ground claims that the Tribunal ‘expected’ the Applicant to modify his behaviour in an unreasonable way, by not travelling outside of Kabul, and that this was contrary to the decision in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71. The Tribunal records the Applicant agreed that there was no need for him to travel outside of Kabul. At paragraph 76 of the Decision Record, the Tribunal proceeded on the basis that the Applicant would not suffer serious harm by refraining from visiting family in Jaghori. I accept the submissions of the First Respondent that the most natural reading of this paragraph is that the Tribunal found that the Applicant will not in future travel outside of Kabul if returned to Afghanistan. This is a finding as to what he will do in the future, which is consistent with Appellant S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71 (Applicant NABD of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 216 ALR 1 at paragraphs 166 to 168 per Hayne and Heydon JJ). The Tribunal did not expressly say that it was expecting the Applicant to do anything. In paragraph 76 of the Decision Record, set out in paragraph 14 of these Reasons, the Tribunal is not expecting the Applicant to do anything other than remain living in Kabul. The Tribunal finds that the Applicant will not travel to family in Jaghori because of the danger he claims exists in undertaking such travel. The family there are not his immediate family. The natural reading of what the Tribunal said at paragraph 76 of the Decision Record is not a requirement or expectation that the Applicant will desist from something in the future, but rather a finding that he will not do something. I accept the First Respondent’s argument that paragraph 76 of the Decision Record accords with the finding in Applicant NABD of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 216 ALR 1 wherein Hayne and Heydon JJ said at paragraph 168:-

   “[168] At no point in its chain of reasoning did the tribunal divert from inquiring about whether the fears which the appellant had were well founded. It did not ask (as the tribunal had asked in Appellant S395/2002) whether the appellant could avoid persecution; it asked what may happen to the appellant if he returned to Iran. Based on the material the tribunal had, including the material concerning what the appellant had done while in detention, it concluded that were he to practise his faith in the way he chose to do so, there was not a real risk of his being persecuted.”

   The finding of the Tribunal was appropriately a finding about what the Applicant would do in the future, and was not the Tribunal imposing a requirement upon the Applicant.

2. Even if I am wrong in that conclusion, Counsel for the First Respondent argued that Appellant S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71 would have no application because travel outside a city does not engage any of the elements under the 1951 Convention Relating to the Status of Refugees, as amended by the 1967 Protocol Relating to the Status of Refugees (‘Refugees Convention’). The Court was referred to the decision in SZATV v Minister for Immigration and Citizenship (2007) 237 ALR 634 where Kirby J at paragraphs 91 to 94 said the following:-

   “[91] Subsequent conflict in the Federal Court: The appellant's question, which relates to the ambit of the application of the principle stated in S395, has been the subject of differences of opinion in the Federal Court of Australia. In NALZ v Minister for Immigration and Multicultural and Indigenous Affairs 86 ALD 1 the operation of the principle in S395 divided a Full Court of that court.

   [92] NALZ was a case concerned with an Indian national who claimed a well-founded fear of persecution owing to suspected connections with a Sri Lankan separatist organisation. The suspicion was claimed to be founded on his religion as a Muslim and his engagement in the business of selling electrical goods to Sri Lankan nationals. The tribunal refused refugee status. It concluded that the applicant's religion was immaterial. As to his occupation, it concluded that "the appellant could avoid future arrest by not selling electrical goods to Sri Lankan nationals". (NALZ v Minister for Immigration and Multicultural and Indigenous Affairs 86 ALD 1). It decided that it would not be "unreasonable for him to avoid arrest by so doing" (NALZ v Minister for Immigration and Multicultural and Indigenous Affairs 86 ALD 1). The question was whether this was but an impermissible variation on the theme of "acting discreetly". A majority (Emmett and Downes JJ) thought not. However, the third judge, Madgwick J, considered that the tribunal's reasoning involved the very kind of error that S395 had identified.⁹⁷

   [93] In rejecting this argument, in NALZ, Emmett J suggested two reasons for distinguishing S395. The first, he concluded, was a factual one, namely that the sexual orientation of the applicants in S395 could not be removed, by reasonable action or otherwise, anywhere within Bangladesh. The source of the persecution was thus nation-wide and generalised (NALZ v Minister for Immigration and Multicultural and Indigenous Affairs 86 ALD 1).  In this sense it was like that faced by persons in the class found to exist in Khawar (2002) 210 CLR 1 (unprotected women in Pakistan). Secondly, Emmett J concluded that the suggested adjustment in NALZ (ceasing to sell electrical goods) did not involve, in itself, surrender of fundamental rights of the kind protected by the Refugees Convention categories (NALZ v Minister for Immigration and Multicultural and Indigenous Affairs 86 ALD 1).

   [94] Accepting that any question of "reasonable" adjustment (as in a propounded internal relocation) will raise issues on which minds may sometimes differ, the reasoning of Emmett J in NALZ offers an acceptable way of reconciling this court's holding in S395 with the by now well-settled line of authority in Australia and elsewhere, recognising the existence of a consideration of internal relocation, where that course would be reasonable in the country of nationality. Such relocation will be a permissible hypothesis, open to the decision-maker, where it is neither contrary to the facts (that is, there is a local rather than nation-wide source of persecution) nor contrary to the essential purpose of the Refugees Convention (which denies, as unreasonable, an "adjustment" that would involve undermining the central purpose of the Refugees Convention of protecting the important, but limited, grounds of "persecution" specified in the Refugees Convention).”

3. I accept the First Respondent’s submissions that even if contrary to my finding it could be said that the Tribunal was ‘expecting’ the Applicant to not travel outside Kabul, this would not amount to the modification of his political or religious beliefs or membership of a social group so Appellant S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71 would have no application.

As to ground four

1. The fourth ground claims the Tribunal displayed apprehended bias.  The Tribunal’s reference in the Decision Record at paragraph 37 as set out in paragraph 12 herein to “particular risk profile” is in context plainly intended to refer to the risk profiles in the Decision Record at paragraph 42 under “Independent Country Information” and such risk profiles did not include university workers. Contrary to assertions made at paragraph 46 of the Applicant’s Submissions filed 6 May 2013, the Tribunal did identify country information which in its view made it unlikely that the Applicant would be targeted for his imputed political opinion. Nowhere in the Tribunal’s Decision Record is there any basis for a fair minded observer to conclude that the Tribunal may not be impartial. The Applicant’s real complaint appears to be with the Tribunal’s interpretation of the country information before it, but the choice and interpretation of country information is a factual matter for the Tribunal (NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at paragraphs 11 to 13).

2. Because s.424(A)(3)(a) of the Migration Act 1958 (Cth) (‘the Act’) applied the Tribunal did not need to give the Applicant country information at all, whether in writing or orally. The fact the Tribunal did so pointed to it trying to ensure a fair hearing. The suggestion that such country information was given orally rather than in writing is misconceived.

3. The major criticism made by the Applicant is that the Tribunal put to him for comment that the UNHCR Eligibility Guidelines did not mention university workers as having a particular risk profile in Afghanistan and that the Tribunal had not identified any reports of attacks in Kabul itself, targeted at those in education. The Tribunal was then putting no more than what appears at paragraph 42 of the Decision Record. Paragraph 42 of the Decision Record is as follows:-

   “The UNHCR considers that individuals with the profiles outlined below require a particularly careful examination of possible risks. These risk profiles, while not necessarily exhaustive, include (i) individuals associated with, or perceived as supportive of, the Afghan Government and the international community, including the International Security Assistance Force (ISAF); (ii) humanitarian workers and human rights activists; (iii) journalists and other media professionals; (iv) civilians suspected of supporting armed anti-Government groups; (v) members of minority religious groups and persons perceived as contravening Shari’a law; (vi) women in specific profiles; (vii) children with specific profiles; (viii) victims of trafficking; (ix) lesbian, gay, bisexual, transgender and intersex (LGBTI) individuals; (x) members of (minority) ethnic groups; and (xi) persons at risk of becoming victims of blood feuds.”

4. Paragraph 73 of the Decision Record (referred to in paragraph 14 of these Reasons) is a specific acknowledgment by the Tribunal that there are reports of a Taliban targeting of educational workers outside Kabul.

5. There is no basis for the Applicant to claim apprehended bias in the Decision Record of the Tribunal. The Tribunal put to the Applicant those matters about which it had difficulty accepting (and as being part of the Applicant’s claims) and sought a response. The Applicant was represented by his migration agent who was able to, and did address matters of concern to the Tribunal as stated by it orally and with respect the Applicant’s claims generally and with respect to country information.

As to ground five

1. The fifth ground claims that the Tribunal erred when considering the Applicant’s “complementary protection claims”. The Applicant has however not made any distinct complementary protection claims. Given the Tribunal’s findings that there was no real chance of the Applicant suffering persecution in future, and that he had not been harmed as he claimed in the past, there was no basis for it to find that there was a real risk of him suffering “significant harm” as defined in s.5(1) of the Act. Given this, the Tribunal in its Decision Record at paragraph 79, simply recorded that it was not satisfied that the Applicant was owed protection obligations under s.36(2)(aa) of the Act. That did not indicate that the Tribunal required the existence of complementary protection obligations to be linked to the Refugees Convention or require a Refugees Convention nexus. It did not and the Tribunal clearly understood that. The Tribunal’s factual findings on the Applicant’s refugee claims necessitated that he also failed to meet s.36(2)(aa) of the Act. The Tribunal repeatedly in its factual findings made clear that on the evidence before it that the Applicant was not at risk of harm from the Taliban. There was no error in such reasoning.

2. The application shall be dismissed and costs will follow the event.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Judge Hartnett

Associate: 

Date:  20 September 2013