MZZDO v Minister for Immigration

[2013] FCCA 671

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZZDO v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 671

Catchwords:
MIGRATION – Particular social group – whether claims specifically put, or arose from the material, or from the findings and conclusions of the Independent Protection Assessor – whether applicant had family support – whether necessary to deal with the claim specifically – application for judicial review dismissed.

Cases cited:
Applicant A & Anor v Minister for Immigration and Ethnic Affairs & Anor (1997) 190 CLR 225
Applicant S v Minister for Immigration and Multicultural Affairs (2004) 217 CLR 387
Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630
Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389
Luu & Anor v Renevier (1989) 91 ALR 39
Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 144 ALR 567
Minister for Immigration and Multicultural Affairs v Khawar(2002) 210 CLR 1
Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003[2005] FCAFC 73
MZWDG v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 497
NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 144 FCR 1
Nagalingham v Minister for Immigration, Local Government and Ethnic Affairs (1992) 38 FCR 191
NAST v Minister for Immigration and Multicultural and Indigenous Affairs[2004] FCAFC 208
NAVX v Minister for Immigration and Multicultural and Indigenous Affairs[2004] FCAFC 287
Plaintiff M61/2010E v Commonwealth (2010) 243 CLR 319
Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437
SZIGQ & Anor v Minister for Immigration & Citizenship & Anor [2007] FCA 328
WZAQU v Minister for Immigration and Citizenship [2013] FCA 327
Yao-Jing v Minister for Immigration & Multicultural Affairs (1997) 74 FCR 275

Applicant: MZZDO

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: S E BRENNAN IN HER CAPACITY AS THE INDEPENDENT PROTECTION ASSESSOR

File Number: MLG 1541 of 2012

Judgment of: Judge F. Turner

Hearing date: 11 June 2013

Date of Last Submission: 11 June 2013

Delivered at: Melbourne

Delivered on: 4 July 2013

REPRESENTATION

Counsel for the Applicant: Mr Townsend

Solicitors for the Applicant: Victoria Legal Aid

Counsel for the First Respondent: Mr Horan

Solicitors for the First Respondent: Clayton Utz

ORDERS

1. The application filed on 3 December 2012 and amended application filed on 15 May 2013 are dismissed.

FEDERAL CIRCUIT COURT OF AUSTRALIA
AT MELBOURNE

MLG 1541 of 2012

MZZDO

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

S E BRENNAN IN HER CAPACITY AS THE INDEPENDENT PROTECTION ASSESSOR

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for judicial review and declaratory and injunctive relief (as an alternative to mandamus), in relation to a recommendation by an Independent Protection Assessor (“IPA”) that the applicant “not be recognised as a person to whom Australia (sic “owes”) protection obligations” (Court Book “CB” p.361).

2. The applicant is an Afghan of Hazara ethnicity and Shia Muslim religion. He has five children and a spouse who, to the best of his knowledge, live in Iran (CB p.80). He arrived at Christmas Island by boat on 23 September 2011 (CB p.1). He claims to have lived illegally in Iran from 2001 to 2009 (CB p.26.5), and was then deported to Afghanistan (CB 269.2), specifically, Kabul. After returning to Kabul, he arranged a passage to Thailand and then to Australia.

3. The applicant requested a Protection Obligations Determination (CB p.38). The Protection Obligations Evaluation on 30 January 2012 was that the applicant:

   “… does not meet the definition of a refugee in the Refugees Convention and the Refugees Protocol…” and that his “… case is to be automatically referred for Independent Protection Assessment” by an IPA. (CB p.262.5)

4. The applicant claimed that he had been threatened by his cousin because the applicant “had not given his daughter’s hand in marriage” (CB p.269.3). The applicant claimed that his cousin had given a photograph of him to the Taliban whom he now fears.

5. The applicant filed his application for judicial review on 3 December 2012 and an amended application on 15 May 2013. The ground and particular in the amended application are:

   (1)The decision of the second respondent was affected by legal error in that in recommending to the first respondent that the applicant not be recognised as a person to whom Australia owes protection obligations, the IPA did not proceed by reference to correct legal principles, correctly applied.

   Particulars

   The second respondent was obliged to, and failed to, consider a claim that the applicant was at risk of violence by reason of a failure to consider his membership of a particular social group, being Hazaras in Kabul without family support or an established social network.

6. Essentially, the claim is that the IPA did not deal with a claim that the applicant feared violence if returned to Afghanistan, because he was a member of a particular social group being “Hazaras in Kabul without family support or an established social network.”

7. At the hearing before the Court on 11 June 2013, Mr Townsend of Counsel appeared for the applicant and Mr Horan of Counsel for the first respondent.

Submissions for the Applicant

1. Mr Townsend’s submissions are based on five propositions being:

   (1)That an IPA is obliged to consider all claims arising on the material before them;

   (2)That the material before the IPA raised a claim of a risk of violence against the applicant in Kabul by reason of the applicant being a “Hazara Shia without family or tribal support in Kabul”. (Transcript “T” p.2, l.31);

   (3)That the claim has a relevant Convention nexus so that it was a jurisdictional error to fail to take it into account;

   (4)That the claim was not expressly dealt with by the IPA; and

   (5)That the claim was not dealt with by way of factual findings subsumed within other findings of the IPA.

The first proposition

1. Mr Townsend submits that the IPA was obliged to take into account not only claims that were expressly made, but also claims which arose on the material. Mr Townsend referred to paras.18 and 19 of his written submissions filed 15 May 2013 and to the decision in MZWDG v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 497 at [39] that the RRT is obliged to consider:

   “… at least three types of claim: first, those that are explicitly put by the applicant; secondly, those that are implicit in the material before the Tribunal; and thirdly, those that emerge from the Tribunal’s findings or conclusions. For the purposes of this case, it is unnecessary to explore the boundaries of the Tribunal’s role any further. But it is important to recognise that in each type of case, regardless of what is put by the applicant or the Minister, the Tribunal must ask itself the right question - whether the applicant has a well-founded fear of persecution for a Convention reason.”

2. Mr Townsend referred to the decision in WZAQU v Minister for Immigration and Citizenship [2013] FCA 327 that even where a claim falls short of being expressly made a decision-maker must consider every claim that clearly arises on the material before it.

3. The Court finds those decisions to be applicable to an IPA.

4. Mr Townsend submits that:

   “… it’s always a question of fact and degree as to whether on a proper assessment all of the materials in the case (sic “it”) can fairly be said to have raised a claim.” (T p.5, l.38).

The second proposition

1. Mr Townsend submits that the material did in fact raise a claim that the IPA was obliged to consider (T p.5, l.44).

2. Mr Townsend referred to the Statement at CB pp.68 to 71, specifically p.70 where the applicant stated at [23]:

   “However, I had no means to support myself anywhere else in Kabul and it was not safe to be living in Kabul, certainly without the support of family.”

3. Mr Townsend submits that the sentence raised a fear of violence and a concern that the applicant would be “left in Kabul without the protective network of family around him that he would need in order to be kept safe from that violence” (T p.6, l.43).

4. Mr Townsend referred to the country information (CB p.108), which is said to be relevant to the applicant. Mr Townsend referred then to the “post decision submissions” for the applicant (CB p.265). Those submissions were made on 6 March 2012 and post-date the Protection Obligations Determination on 30 January 2012 (CB p.245).

5. The Court finds that para.29 of those submissions does not raise the issue of lack of family support. Mr Townsend referred to para.20 of his written submissions, which he submits outlines a number of matters that demonstrate the applicant’s concern about the lack of family and tribal networks, and the risk which would be posed to the applicant if he is returned to Afghanistan.

6. Mr Townsend referred to CB p.169 which contains country information about relocation within Afghanistan. Mr Townsend referred to the passage at CB p.171.7:

   “In the towns a network in the neighbourhood is necessary in order to get protection. As regards personal networks in the town, many people who have returned – and who do not have a network – are especially at risk of being raped and assaulted…”.

7. Mr Townsend referred to the passage at CB p.172.1:

   “Concerning the importance of networks, DACAAR [Danish Committee for Aid to Afghan Refugees] said the persons/families without networks are extremely vulnerable and exposed. There is no judicial or police protection in the country, only personal networks. Even though many people have fled Afghanistan, there are still networks…”.

   And at CB p.172.5:

   “One cannot use Kabul or any other city as an internal flight alternative if one has a conflict somewhere else in the country, because the networks of clans and the political networks are very closely linked up throughout Afghanistan, and the central government are not able to offer protection…”.

8. The Court finds that there is evidence that the applicant has family in Kabul, although there are difficulties between the applicant and his relatives. Those difficulties do not mean that the applicant does not have a family network in Kabul. His step-brother owns a house there, and his elderly mother lives in that house (CB p.388.3). An IPA is not allowed to ignore evidence that goes against a claim – that would be a failure to consider relevant material.

9. At the bottom of CB p.172, the applicant’s migration agent’s submissions about the increased influence of local community leaders and “the dependence of individuals upon their ethnic and sectarian communities” are recorded.

10. Mr Townsend referred to the submissions of the applicant’s migration agent about the applicant’s fears of persecution (CB p.265.7).

11. The Court finds that the fear from a lack of support networks is not raised there.

12. Mr Townsend referred to the assessment of the IPA at CB p.387 [104]:

    “I do not consider that there are any other factors relevant to MZZDO (sic “the applicant”) which may afford a well-founded fear by reference to his ethnicity, such as social, political, economic or military power which would distinguish him from other Hazaras. I am satisfied that the claimant (sic “he”) would not be at risk of serious harm for reasons of his Hazara ethnicity or his Shia religion. I do not accept that the applicant has faced serious harm for his Hazara ethnicity or his Shia religion or that there is a real chance that he would do so now or in the reasonably foreseeable future.

13. Mr Townsend submits that this shows that the IPA went beyond the claims on CB p.265, but did not deal with the claim based on the absence of family or tribal links. The Court rejects the submissions that the wording there could not include consideration of Hazara Shia’s – without a network of support, as the IPA did not find “any other factors”. The claim about the lack of networks if it arose is subsumed in that finding of greater generality.

14. In Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630 at [47]:

    “It may be that it is unnecessary (for the Tribunal) to make a finding on a particular matter because it is subsumed in findings of greater generality.”

15. Mr Townsend referred to CB pp.364 to 365 at [21] that the applicant “feared he would be killed if he returned to Afghanistan because he could not live and move around and additionally his cousin threatened to kill him”. Mr Townsend says that passage is tied to the fact that the applicant does not have family or tribal networks when he is in Afghanistan. Mr Townsend then points out the summary of the Statutory Declaration (sic “Statement”) at (CB p.365), omits to quote para.23 thereof, about the lack of family support (CB p.70).

16. Mr Townsend submits that the material he referred to shows a separate and distinct claim of “feared persecution in the form of violence because of the vulnerability that is caused to the applicant by his lack of the compound phrases ‘family or tribal networks’…”. (T p.12, l.2)

The third proposition

1. Mr Townsend submits that the applicant is part of the particular social group as defined and that it was open to the IPA to so find.

2. Mr Townsend referred to the decision in Applicant S v Minister for Immigration and Multicultural Affairs (2004) 217 CLR 387 at [36]:

   “First, the group must be identifiable by a characteristic or attribute common to all members of the group. Secondly, the characteristic or attribute common to all members of the group cannot be the shared fear of persecution. Thirdly, the possession of that characteristic or attribute must distinguish the group from society at large.”

3. Mr Townsend agreed that the argument he is making is that it was open to the IPA to find on the material that there was a particular social group, and that the relevant material was “not taken into consideration” (T p.16, l.1).

4. Mr Townsend referred to the decision in Applicant A & Anor v Minister for Immigration and Ethnic Affairs & Anor (1997) 190 CLR 225 at p.239:

   “… the Convention in its amended form relevantly defines the term “refugee” as:

   “any person who … owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country.”

   The words “race, religion, nationality, membership of a particular social group or political opinion” are generally referred to as “Convention reasons”.

   The appellants claim that if they are returned to China they face forcible sterilisation pursuant to China's “One Child Policy” under which the Chinese government permits Chinese families to have only one child. The appellants claim, and the respondents do not dispute, that forcible sterilisation is persecution and that they have a well-founded fear of being forcibly sterilised if returned to China. The dispute between the parties is whether the appellants fear persecution “for reasons of … membership of a particular social group”. Before the RRT, the particular social group of which both appellants were found to be members was ultimately identified as follows:

   “‘those who having only one child do not accept the limitations placed on them or who are coerced or forced into being sterilised’ … The group exists by virtue of government policy and government action and is thereby cognisable. The persecution feared is precisely because the [appellants are] defined into the group by government policy.”

   And at p.243:

   “In this case, the reason the appellants fear persecution is not that they belong to any group, since there is no evidence that being the parents of one child and not accepting the limitations imposed by government policy is a characteristic which, because it is shared with others, unites a collection of persons and sets them apart from society at large. It is not an accurate response to say that the government itself perceives such persons to be a group and persecutes individuals because they belong to it. Rather, the persecution is carried out in the enforcement of a policy which applies generally. The persecution feared by the appellants is a result of the fact that, by their actions, they have brought themselves within its terms.”

5. Mr Townsend submits that the Court should find that a claim of membership of a particular social group was made, because this is not a case where the persecution is defined by persecution imposed on the applicant.

6. Mr Townsend referred to the decision in Minister for Immigration and Multicultural Affairs v Khawar(2002) 210 CLR 1 at [31]:

   “Where persecution consists of two elements, the criminal conduct of private citizens, and the toleration or condonation of such conduct by the state or agents of the state, resulting in the withholding of protection which the victims are entitled to expect, then the requirement that the persecution be by reason of one of the Convention grounds may be satisfied by the motivation of either the criminals or the state.”

7. This is submitted to be relevant because the first respondent submits that the persecution of the applicant is not motivated because of the particular social group of which the applicant is a member. The applicant submits that the combination of the violence feared as a Hazara Shia without family or tribal networks, and the discriminatory withholding of protection by the Afghan state is capable of constituting a particular social group, even if the risk to the applicant as a Hazara Shia without family and tribal networks is not itself sufficient to constitute a particular social group. References were made to discrimination by the state (CB pp.144, 145, 167, 168 and 183).

8. Mr Townsend submits that this claim was made.

9. The Court accepts Mr Horan’s submission on Khawar (supra), that it would be applicable if the state was not protecting Hazaras without family support. The Court accepts that there was no material available to indicate any discrimination by the state against Hazaras who have no family support. The decision in Khawar (supra) does not assist the applicant.

The fourth proposition

1. Mr Townsend submits that the claim was not expressly dealt with by the IPA as there was nothing in the Assessment which expressly deals with the claim.

The fifth proposition

1. Mr Townsend submits that the claim was not dealt with by findings of fact which were subsumed in the way in which other claims were dealt with by the IPA.

2. Mr Townsend submits that the finding at CB p.386 [101] is not a clear finding that the applicant had family support in Kabul. The Court rejects that submission. The IPA found that the applicant has family in Kabul living in a home owned by his step-brother (CB p.388 [109]).

3. The claimed social group is persons “without family support”, not “without a family network”.

4. Mr Townsend submits that the finding does not suffice. Mr Townsend submits that the findings at CB p.388 [108] are not sufficient to deal with the claim because the findings deal with discrimination in seeking employment, or housing, or accessing education or health care.

5. Mr Townsend submits that it is “undoubtedly a question of fact and degree as to whether materials will raise a particular social group claim” (T p.21, l.38). That is correct.

Submissions for the first respondent

1. Mr Horan submits that:

   “… the applicant was not a member of the relevant particular social group that’s now claimed on the findings made by the assessor so that this claim simply didn’t arise on the facts.”
   (T p.22, l.18)

2. Mr Horan submits that the IPA made a finding that precluded the applicant from falling within the group claimed, that is that the applicant did have family and support networks in Kabul where he had lived most of his life (CB p.386 [101]).

1. The Court accepts the IPA found that the applicant had family members in Kabul, although his relationship with his family may have had difficulties. The applicant has not established that he did not have “family support”.

2. Mr Horan submits that the IPA found that the applicant could access accommodation and employment in Kabul even if he could not live at the family home (CB p.388.5). The Tribunal found that the applicant faced competition for work, but not as a result of any official discrimination (CB p.388.2).

3. Mr Horan submits that the claim of the particular social group was not sufficiently raised by the applicant or by the materials put before the IPA. The Court has outlined above where Mr Townsend says that claim was put before the IPA. The Court finds that the claim was not put, or sufficiently raised by the material.

4. Mr Horan submits that in this case, the claim of a particular social group did not constitute a substantial, clearly articulated argument relying upon established facts, which was the test applied in Plaintiff M61/2010E v Commonwealth (2010) 243 CLR 319, as to whether a claim had been put that had to be dealt with (see also Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 at [24].

5. Mr Horan submits that an inference that the Tribunal has failed to consider an issue is not too readily drawn and referred to the decision in Applicant WAEE (supra) at [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.”

6. The Court finds that here, the factual premise upon which the particular social group rests, has been rejected (CB p.386 [101]).

7. Mr Horan submits that an assessor is not required to consider a case that is neither expressly made nor arises clearly on the material before them, and referred to the decision in NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 144 FCR 1 at [61]-[62].

8. Mr Horan submits that the applicant’s written submissions dated 6 March 2012 (CB pp.265 – 271) did not articulate any claimed fear of serious harm amounting to persecution for reasons of the applicant’s membership of a particular social group, comprising Hazaras without family support, or an established social network. The Court accepts that submission.

9. Mr Horan submits, and the Court accepts, that none of the material before the IPA suggested that any serious harm experienced by Hazaras in Kabul was motivated by membership of a group that had either no family support or an established social network.

10. Mr Horan submits, and the Court accepts, that the particular social group claim did not emerge clearly from the materials before the IPA. The applicant stated at CB p.70 [29] that he was at risk of being harmed because:

    “(1) I am a Hazara and Shia; and

    (2) because of a family dispute over the marriage of my daughter and the government’s inability and unwillingness to protect me in this matter because I am Hazara and Shia.”

11. Mr Horan submits, and the Court accepts, that the applicant did not suggest that he would face any risk of violence or other harm because he was a person with no family support.

12. Mr Horan submits that the claim of lack of family support did not arise because of the findings (as to his family in Kabul) at CB p.386 at [101]. The Court accepts that submission. The applicant has family in Kabul. It has not been shown that there are no social or tribal networks that would be available to the applicant in Kabul from his time living there, and from his experience and knowledge of Kabul.

13. An applicant must establish their case. Although “… the concept of onus of proof is not appropriate to administrative inquiries and decision-making…” (as stated in Yao-Jing v Minister for Immigration & Multicultural Affairs (1997) 74 FCR 275 at p.288), the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in an much detail as is necessary to enable the examiner to establish the relevant facts.

14. The Court refers to the following decisions:

    ·Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 144 ALR 567 at p.596:

    “… the mere fact that a person claims fear of persecution… (for a particular reason) does not establish either the genuineness of the asserted fear or that it is “well-founded” or that it is for… (the reason claimed). It remains… for the applicant to persuade the reviewing decision-maker that all of the statutory elements are made out.”

·A decision-maker is not required to make the applicant’s case for him or her: see Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at p.170 and Luu & Anor v Renevier (1989) 91 ALR 39 at p.45.

·Nor is the Tribunal required to accept uncritically any and all allegations made by the applicant: see Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at p.451.

·Nagalingham v Minister for Immigration, Local Government and Ethnic Affairs (1992) 38 FCR 191.

1. The Court applies the decision of SZIGQ & Anor v Minister for Immigration & Citizenship & Anor [2007] FCA 328 where the reasons the applicant failed to establish that matter, include that he failed to provide sufficient information about his claims to satisfy the Tribunal. The decisions of the Full Court in NAST v Minister for Immigration and Multicultural and Indigenous Affairs[2004] FCAFC 208, NAVX v Minister for Immigration and Multicultural and Indigenous Affairs[2004] FCAFC 287 and Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003[2005] FCAFC 73 confirm that this is a valid reason for the application [in SZIGQ (supra)] to be rejected.

2. The Court accepts that the material on the difficulties of relocating to Kabul, deals with people from another area who do not have experience in Kabul, or a family connection or social network there (CB p.169). It therefore is not applicable to the applicant.

3. Mr Horan submits that the claim of the particular social group could not arise because the applicant was not a member of the specified group. The Court accepts that submission; the applicant had family in Kabul (CB p.386 [101]).

4. The Court finds that the IPA, having made a finding that the applicant had family in Kabul, it was not necessary to make a finding on a claim of a particular social group without family support in Kabul. Such a claim could not arise. A specific finding on it was not required. The IPA was not required to deal with the claim more specifically, than subsuming it in a finding of greater generality.

5. The Court finds that the IPA considered the claims put specifically by the applicant or arising from the material, or from the findings or conclusions of the IPA. An error of law or denial of procedural fairness has not been established.

6. The application and amended application for judicial review are dismissed.

I certify that the preceding sixty-five (65) paragraphs are a true copy of the reasons for judgment of Judge F. Turner

Associate: 

Date:  4 July 2013