MZZEM v Minister for Immigration
[2013] FCCA 1220
•4 September 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MZZEM v MINISTER FOR IMMIGRATION & ANOR | [2013] FCCA 1220 |
| Catchwords: MIGRATION – Refugee Review Tribunal – whether any evidence for finding – proper, genuine and realistic consideration – whether consideration of claim that applicant was a member of a particular social group consisting of children, or Hazara children, in Afghanistan. |
| Legislation: Migration Act 1958 Federal Circuit Court Rules 2001 Migration Regulations 1994 |
| Cases cited: Minister for Immigration & Citizenship v MZYHS (2011) 119 ALD 534; [2011] FCA 53 Minister for Immigration & Citizenship v SZJSS (2010) 243 CLR 164; (2010) 85 ALJR 306; (2010) 119 ALD 446; (2010) 273 ALR 122; [2010] HCA 48 SFGB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 77 ALD 402; [2003] FCAFC 231 SZQKE v Minister for Immigration and Citizenship (2012) 127 ALD 77; [2012] FCA 514 |
| Applicant: | MZZEM |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | MLG 1660 of 2012 |
| Judgment of: | Judge Riley |
| Hearing date: | 26 June 2013 |
| Date of last submission: | 26 June 2013 |
| Delivered at: | Melbourne |
| Delivered on: | 4 September 2013 |
REPRESENTATION
| Counsel for the Applicant: | Nola Karapanagiotidis |
| Solicitors for the Applicant: | Victoria Legal Aid |
| Counsel for the First Respondent: | Tim Reilly |
| Solicitors for the First Respondent: | Sparke Helmore |
| Counsel for the Second Respondent: | No appearance |
| Solicitors for the Second Respondent: | Sparke Helmore |
ORDERS
The application filed on 21 December 2012, amended on 10 April 2013 and further amended on 26 June 2013 be dismissed.
The applicant pay the first respondent’s costs, fixed in the sum of $6,471.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1660 of 2012
| MZZEM |
First Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
And
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application for review of a decision of the Refugee Review Tribunal.
The applicant is a citizen of Afghanistan. He is of Hazara ethnicity and Shia Muslim religion. The applicant was 17 years old at the time of the Tribunal’s decision. He arrived at Christmas Island by boat.
The applicant’s claims
The applicant claimed that:
a)he was born in Nawor in Ghazni province;
b)his father moved the family to Nowabad, which is closer to Ghazni City;
c)the applicant’s father worked as a truck driver for a road construction company;
d)the applicant also worked for the road construction company;
e)his father was threatened by the Taliban to make him stop working for the road construction company;
f)his father continued working for the road construction company;
g)his father disappeared one day after leaving for work;
h)his father’s truck was found abandoned;
i)the applicant and his mother reported the matter to the chief security officer for Ghazni province and a radio station;
j)when they went back to the security officer to check on the progress of the matter, a masked man on a motorcycle told them that if they did not drop the investigation, all the members of the family would be killed;
k)after a few weeks, the applicant’s father’s body was found;
l)he had been stabbed and shot;
m)the applicant decided to leave Afghanistan;
n)he was afraid of travelling on the road from Ghazni to Kabul as the Taliban were in control of the road and he was personally known to them and threatened by them;
o)his mother and siblings could not leave Afghanistan with him so they returned to their home village in Nawor; and
p)he is very concerned about his mother and siblings because the Kuchis attack Nawor every year and kill many Hazaras and the Taliban knows his family members and can target them easily in that area.
The Tribunal’s decision
The Tribunal accepted that the applicant’s father had been threatened and then killed by the Taliban because he worked for a road construction company. The Tribunal did not accept that the applicant worked for the road construction company. The Tribunal did not accept that the Taliban, having killed the applicant’s father, would have any interest in the applicant or his family.
The Tribunal did not accept that the Taliban seek to harm Hazaras and Shias unless they have some other characteristic, such as working for the government. The Tribunal considered that the applicant would be able to travel safely on the roads back to Nawor. The Tribunal did not consider that the applicant would be targeted by the Kuchis as a Hazara or as a landowner. The Tribunal also considered that the applicant would be able to subsist on the family’s land in Nawor.
The Tribunal also considered the claims under the complementary protection provisions. The Tribunal did not accept that the applicant faced a real risk of significant harm.
Ground 1: no evidence
The first ground of review in the amended application filed on 10 April 2013 as further amended on 26 June 2013 is:
There was no evidence:
(a) in relation to the finding at paragraph [132] of the second respondent’s reasons for decision that the applicant will not be specifically targeted by the Kuchi as a landowner or a Hazara; or
(b) in relation to the finding at paragraph [125] of the second respondent’s reasons for decision that the applicant can return to his home region.
In SFGB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 77 ALD 402; [2003] FCAFC 231, the Full Court of the Federal Court said:
19.… If the tribunal makes a finding and that finding is a critical step in its ultimate conclusion and there is no evidence to support that finding then this may well constitute a jurisdictional error: see Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 355-7; 94 ALR 11 at 37-8; 21 ALD 1 at 23-4. …
20.On the other hand, if there is sufficient evidence or other information before the tribunal on which it could reach the conclusion it did then it is for the tribunal to determine what weight it gives to that evidence. Indeed, unless the relevant fact can be identified as a “jurisdictional fact”, there is no error of law, let alone a jurisdictional error, in the tribunal making a wrong finding of fact: Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 35-36. It is for the Tribunal to determine the merit of the claim. The line between merit review and jurisdictional error may not be a “bright line”, but it is nevertheless an essential one: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272; 136 ALR 481 at 490-1; 41 ALD at 9. (emphasis added)
a. Kuchis
The first impugned finding that the applicant said there was no evidence for is the finding set out below in bold in paragraph 132 of the Tribunal’s reasons for decision. Paragraph 132 is as follows:
The Tribunal does not accept that there is a genuine risk to the applicant from the actions and activities of the Kuchi. The Kuchi/Hazara dispute has been a limited dispute around the use of land. The Tribunal does not consider that the applicant will be specifically targeted by the Kuchi as a landowner or a Hazara. The Tribunal finds that the applicant does not face a real chance of serious harm arising from his ownership of land, or dispute with the Kuchis over that land, and that therefore the applicant does not have a well-founded fear of serious harm for this reason.
The applicant submitted that the Tribunal apparently relied on one line in a report from the Department of Foreign Affairs and Trade (“DFAT”) to support the first impugned finding. However, the applicant submitted that that “one line” did not actually provide any evidence for the first impugned finding. The “one line” is the passage in bold in the following quotation, taken from paragraph 130 of the Tribunal’s reasons for decision:
Our contacts assessed the long-standing fighting between Kuchis and Hazaras was unlikely to be resolved in the near future - but none, including Hazaras, considered these tensions were such that they should constitute a threat preventing Hazaras abroad from returning to Afghanistan.
The “one line” refers to a view expressed by some unidentified people who had been in contact with DFAT. The contacts acknowledged that there was long-standing fighting between the Kuchis and the Hazaras and acknowledged that the fighting was unlikely to be resolved in the near future. The contacts then expressed the opinion that the ongoing fighting:
should [not] constitute a threat preventing Hazaras abroad from returning to Afghanistan.
It is very unclear what the contacts meant by this, and, particularly, whether they meant that Hazaras in the relevant area would not face a real chance of persecution and whether they had any idea what the legal test for a real chance persecution actually requires. The contacts might have meant that a certain number of Hazaras being killed or injured by the Kuchis should not be sufficient to prevent Hazaras abroad from returning to the relevant area. Or the contacts might have meant that the fighting between Hazaras and Kuchis in a certain area of Afghanistan should not prevent Hazaras abroad from returning to other areas of Afghanistan. If the contacts meant the latter, the Tribunal would have needed to consider the issue of relocation.
The “one line” does not consist of facts, such as that the fighting occurs with a certain frequency, and causes a certain number of deaths and injuries. If the contacts had provided such factual information, the Tribunal could have used that information to decide whether the prospect of fighting on the relevant scale represented a real risk of serious harm to the applicant.
On the contrary, the “one line” consists of an opinion. The Tribunal is entitled to rely on an opinion. Ideally, any opinion relied on by the Tribunal would set out the facts on which it is based and be stated with some precision and clarity. However, it appears that, in the judicial review context, the expression of opinions that falls well short of the ideal is sufficient to render a finding based on such opinions open in the necessary sense. It is, of course, imperative, that the court avoids merits review.
Against that background, the “one line” does provide some basis for the finding that the applicant does not face a real chance of serious harm arising from his ownership of land, or dispute with the Kuchis over that land. The no evidence ground requires that there be absolutely no evidence on which the relevant finding could be made. The “one line” is not particularly clear or strong evidence, but it does meet the very low threshold required.
Moreover, the first respondent submitted that there was ample evidence supporting the first impugned finding in the Tribunal’s reasons for decision at paragraphs 127 to 132. Those paragraphs are as follows:
127.The applicant claims that he cannot return to his village in the district of Nawur in Ghazni province due to the threat Kuchis provide to his and his family's lives and livelihood. The applicant describes the presence of Kuchis on land owned by the applicant, and the fear that this seasonal occupation would be ongoing for the foreseeable future. The Kuchis are a nomadic people who mostly farm livestock. They do not have dedicated land but roam across Afghanistan seeking suitable pasture for their animals. The Kuchi have had long-standing difficulties with Hazara populations, and the Taleban have sought to exacerbate this tension by supporting the Kuchis in their disputes with Hazara populations. The applicant stated that the Kuchis and the Taleban were one and the same, and the Tribunal can understand the applicant’s perspective on this. However the country information clearly shows that the Kuchis are a separate group to the Taleban.
128.The applicant has described the activities of the Kuchi in coming to his land and his village. His family has been adversely affected by this in two ways, the disruption to family life, including the claimed destruction of the village mosque and limitations to access to school, and by the Kuchis taking over land owned by the applicant. The applicant claimed that due to the activities of the Kuchis in 1387, the applicant’s father had taken the applicant and his family away from the village and nearer to the city of Ghazni.
129.The country information about the dispute between the Hazaras and Kuchi is limited. The report cited above, from Fabrizio Foschini, states that prior to 2011 the problems in Nawur district between the Kuchis and Hazaras were limited, and that it had been spared the problems that had occurred in other areas of Afghanistan. This information differs from the evidence of the applicant as to the reasons why his father decided to move the family from their land, in that the father had moved prior to the significant outbreak of violence that occurred in 2011. The country information cited does indicate that there has been a continuation of the violence that occurred in 2011, the recent DFAT material positing that there have been continuing difficulties between Kuchis and Hazaras in recent months in Nawur.
130. However the DFAT material also states specifically that:
Our contacts assessed the long-standing fighting between Kuchis and Hazaras was unlikely to be resolved in the near future - but none, including Hazaras, considered these tensions were such that they should constitute a threat preventing Hazaras abroad from returning to Afghanistan.
131.The Tribunal considers that the applicant’s father moved the family away from their home region of Nawur for economic reasons, that he sought to use the family car for transit purposes, and ultimately gained employment as a driver for a road building company. The Tribunal does not accept that the dispute between the Kuchi and the Hazara in Nawur was the reason for the departure from that area, though it may have been something that the applicant and his father were aware of. The applicant stated that since his father’s death his family members have returned to the family home in Nawur from Nowabad. (emphases added)
132.The Tribunal does not accept that there is a genuine risk to the applicant from the actions and activities of the Kuchi. The Kuchi/Hazara dispute has been a limited dispute around the use of land. The Tribunal does not consider that the applicant will be specifically targeted by the Kuchi as a landowner or a Hazara. The Tribunal finds that the applicant does not face a real chance of serious harm arising from his ownership of land, or dispute with the Kuchis over that land, and that therefore the applicant does not have a well-founded fear of serious harm for this reason.
The first respondent in particular said that there was evidence supporting the first impugned finding in the fact found at paragraph 131 of the Tribunal’s reasons that the father moved his family away from Nawur for economic reasons and, implicitly, not for reasons of fear of serious harm.
However, that finding does not provide any evidence for the first impugned finding. The Tribunal found at paragraph 129 of its reasons that the father had moved his family before the 2011 outbreak of violence, which was continuing at the time of the Tribunal’s decision. Consequently, the fact that the father in the past might have moved for economic reasons says nothing about the foreseeable future.
The first respondent also submitted that there was evidence for the first impugned finding in the finding in paragraph 131 of the Tribunal’s reasons for decision that the applicant’s family had returned to Nawur. The first respondent said that the return to Nawur showed that the family was not afraid of serious harm in Nawur. It is possible that the family, being without a breadwinner, may have preferred to return to their land in Nawur where they would be able to subsist in some manner notwithstanding a risk of serious harm. However, I accept that the fact of the return does constitute some evidence, albeit slight evidence, for the first impugned finding.
The no evidence ground has a very low threshold. The court must, of course, refrain from merits review. In my view, there was sufficient evidence in this case to support the first impugned finding. The first part of ground 1 is not made out.
b. roads
The second impugned finding is the finding in paragraph 125 of the reasons for decision that the applicant can return to his home region without fear of harm on the way. That paragraph, and the following paragraph, are as follows:
125.Having determined that the applicant does not face a real chance of serious harm in his home region of Nawur, the Tribunal has to consider the risk that the applicant may face in returning to his home region. The Tribunal has considered the country information as presented above, and considers that the applicant has reasonable options available for him to return to his home in Nawur without fear of harm on the way. The information shows that there are two alternative routes, one that is affected by seasonal issues from Bamiyan and another from Ghazni City directly, that the applicant can safely travel on. The Tribunal finds that the applicant can return to his home region.
126.Further, the Tribunal considers that the applicant would not be of interest by the Taliban, as he does not have a connection with the Afghan Government or international community that would place him at risk, and accordingly, could travel to Nawur without being individually targeted for harm.
The first respondent said, and I accept, that, reading the Tribunal’s reasons for decision as a whole, reference should also be made to paragraph 143 of the reasons, which elaborated on the safety of the roads. Paragraph 143 of the reasons for decision concerned complementary protection. However, it states as follows:
The Tribunal has considered the claim that the applicant will face a real risk of significant harm on the roads to Nawur District. The Tribunal again considers the country information to be informative, and that while there are some general concerns about the safety of travellers on the roads, that there is no specific targeting of Hazara by the Taliban or other groups. The reports of the roads discuss ways into Nawur that may have seasonal difficulties, but do not have significant ongoing problems from insurgent groups. The Tribunal is also cognizant that the most dangerous part of the travel is past Ghazni City and heading towards the Jaghori District in Ghazni, which passes through districts that have a significant Taliban presence. The Tribunal does not believe that the applicant will have to travel on that road, and that he will be able to go through alternative routes through Ghazni City or Bamiyan, as described above, to get t[o] Nawur without there being a real risk of significant harm.
The first respondent also relied on paragraphs 73, 77, 78, 79 and 85 of the Tribunal’s reasons for decision to say that there was evidence supporting the Tribunal’s finding. Those paragraphs are as follows, with the passages particularly emphasised by the parties set out in bold:
73. The recent DFAT posting stated that:
Update on routes between Kabul and Jaghori/Malistan - including the course of secure routes; their general condition; whether they are open year round; and the volume and nature of traffic and people movement on these routes.
The poor condition of Afghanistan's limited road network is added to by insecurity. Taliban and criminal elements target the national highway, setting up arbitrary armed checkpoints. Official ANP and ANA checkpoints designed to secure the road are sometimes operated by poorly-trained officers who are known to use violence to extort bribes. Vehicles are routinely stopped and harassed, and occupants occasionally abducted or killed. Speeding and unsafe driving further aggravate the problem - locals will routinely drive between 100 km/h and 200 km/h in zones with 60 km/h speed limits, in unroadworthy vehicles on winding roads. While it is difficult to source statistics, all our contacts agreed the vast majority of deaths on Afghan roads were caused by traffic accidents rather than targeting by the insurgency.
There are two established routes from Kabul to Ghazni's Hazara districts. The first takes Highway 1 via Wardak Province. It is the most direct road, but undeniably insecure, crossing the most violent districts of Ghazni province as described above. Locals with ties to the province and knowledge of the area - including Hazaras - were generally able to travel between Ghazni City and Hazara districts without incident and thousands of vehicles use the road daily.
But there are recognised dangers: the route forms the key Taliban access route linking Pakistan (through Southern provinces, into the south of Ghazni (Nawah) and then through Ghazni province) to Kabul. From Ghazni City, one would need to drive along the Highway through Andar and Qarabagh districts before turning off towards Jaghori and Malistan. After leaving Highway 1 towards Jaghori/Malistan, a long paved road to Jaghori and Malistan passes through Qarabagh district. There are ANP checkpoints on the route, but the Taliban and criminals are also active. Insurgent targeting in the district, as on roads nation-wide, is focused on road-side Improvised Explosive Devices (IEDs). The Taliban has previously blocked this road several times for extended periods - including, we understand, for a number of months in the first half of 2012 - effectively cutting off access to the highway.
The alternate route from Kabul to Jaghori/Malistan takes the Parwan Road to Bamiyan then enters Ghazni province through Nawur district. The condition of the roads is extremely poor - only secondary unsealed roads which are no better than tracks in sections. The volume of local traffic is low: in isolated Nawur district, one might pass only a handful of vehicles in an hour's driving. Even in a decent off-road vehicle, one might take four hours to drive 60km. Contacts estimated it takes around 15 hours to drive from Bamiyan to Jaghori, with traffic slowed further by snowfalls in winter. Such a detour is not inconsistent with the travelling reality in other rural areas across Afghanistan. Overall, interlocutors agreed road travel within the broad Hazara 'belt' in the central highlands region (taking in Nawur, Malistan and Jaghori) was very safe.
R.3. Are Hazaras targeted on roads to and from Jaghori District, based on their ethnicity and/or their status as Shi'a Muslims?
Contacts unanimously agreed the main targets on the roads in Ghazni, and nationally, were people employed by or with direct links to the Afghan Government or international community - regardless of ethnicity. Carrying documentation which pointed to a connection with the government remained dangerous. Nobody we spoke to was aware of targeting of any particular ethnic group on the roads. Several interlocutors pointed out the most significant threats to life safety on these routes were traffic accidents and IEDs - neither of which discriminated according to ethnicity.[1] (emphases added)
[1] CX298127: AFGHANISTAN: CIS Request AFG13987: Security Situation for Hazaras in Afghanistan.
…
77.There are three routes for road travel between Kabul and the Hazara dominated areas of Ghazni province. The three routes are as follows:
Route 1 - Heading south from Kabul: travel along the Kabul–Kandahar Highway, leaving the highway at Qarabagh district, and then continuing into the Hazara dominated areas of Ghazni province;
Route 2 - Heading west from Kabul: travel from Kabul to Wardak province, then travel south, entering Ghazni province at Nawur district, and then continuing into the Hazara dominated areas of Ghazni province;
Route 3: Heading north from Kabul: travel from Kabul to Bamiyan province (via Charikar-Ghorband Valley – Shibar Pass), then travel south, entering Ghazni province at Nawur district, and then continuing into the Hazara dominated areas of Ghazni province.[2]
78.In April 2012 Thomas Ruttig, Co-Director of the Afghan Analysts Network, was asked to provide expert advice to IPAO on current conditions for Hazaras who travel between Kabul and the Hazara dominated areas of Ghazni province (i.e. Jaghori, Malistan, Nawur and Jagahtu Districts) using either of the three routes identified above.
79.In his response Mr Rutting (sic) stated that travel between Kabul and Ghazni was dangerous and precautions were necessary. Referring to Route 1 Mr Ruttig claimed that security had improved and that this was the route most used by the local population. In respect to Route 2, Mr Ruttig described travel through the districts of Maidanshahr[3]Sheikhabad and Seyyedabad[4] as “highly volatile”, and in respect to Route 3 he noted that the Nawur segment was blocked by snow from autumn to spring and insurgents continued to be active in the Ghorband Valley. Mr Ruttig argued these insurgents targeted government personnel mainly and through traffic in general most of which would be Hazaras, they are more likely to be attacked.[5] He has stated that Hazaras mainly were still afraid to pass through Pashtun/Taliban influenced areas and could only do so by with a number of precautions such as deleting conspicuous phone numbers (that indicate contact with Westerners or government authorities) and not carrying papers of the same character. . He indicated that there were occasional road blocks where individuals are singled out apparently reported by informers. He stated that there was a more direct way from Ghazni to Nawur used by most Nawur residents where there was occasional night time insurgency activities reported.[6] (emphasis added)
[2] Independent Protection Assessment Office 2012, Email to Thomas Ruttig, 4 April
[3] Maideanshahr also spelt Maidan Shahr is the capital of Wardak province.
[4] These districts are located in the south of Wardak province on the border with Ghazni.
[5] Ruttig,T 2012, Comments provided by Thomas Ruttig on travel between Kabul and Ghazni for Hazaras, 25 May
[6] Ruttig, T., 2012, Email advice by Thomas Ruttig dated 25 May 2012 on Road Travel in Afghanistan provided to the Independent Protection Assessment Office, 25 May.
…
85.Thomas Ruttig, Co-Director of the Afghanistan Analysts Network has stated that Hazaras mainly were still afraid to pass through Pashtun/Taliban influenced areas and could only do so by with a number of precautions such as deleting conspicuous phone numbers (that indicate contact with Westerners or government authorities) and not carrying papers of the same character. He indicated that the route from Kabul to Bamiyan province (via the Ghorband valley) through Nawur and then continuing to Hazara dominated areas of Ghazni province had two problems. First, it was blocked from autumn to spring by snow and that further to the north that there was still insurgent activity in the Ghorband valley up to the Shibar pass. These insurgents targeted government personnel mainly and through traffic in general most of which would be Hazaras. He indicated that there were occasional road blocks where individuals are singled out apparently reported by informers. He stated that there was a more direct way from Ghazni to Nawur used by most Nawur residents where there was occasional night time insurgency activities reported.[7]
[7] Ruttig, T., 2012, Email advice by Thomas Ruttig dated 25 May 2012 on Road Travel in Afghanistan provided to the Independent Protection Assessment Office, 25 May.
There is a good deal of evidence that the roads to the applicant’s home region are dangerous. However, there is also the evidence in the fifth paragraph of the DFAT report quoted at paragraph 73 of the Tribunal’s reasons for decision that one particular route is “very safe”. That is sufficient evidence to support the second impugned finding.
The Tribunal is, of course, entitled to prefer some country information to other country information and is entitled to place such weight as it thinks fit on particular items of country information. In proceedings such as this, a finding against the weight of the evidence is not a ground for review. The second part of ground 1 is not made out.
Ground 2: proper, genuine and realistic consideration
The second ground of review in the amended application filed on 10 April 2013 is:
The Tribunal committed an error of law by failing to properly assess the applicant’s claims and/or by failing to give “proper, genuine and realistic” consideration to the merits of his case.
Particulars
(a)The applicant refers to and relies upon ground 1 above.
Failure to give genuine, proper and realistic consideration to a claim is not a ground of review, unless it amounts to a total failure to consider a claim: Minister for Immigration & Citizenship v SZJSS (2010) 243 CLR 164; (2010) 85 ALJR 306; (2010) 119 ALD 446; (2010) 273 ALR 122; [2010] HCA 48 and Minister for Immigration & Citizenship v MZYHS (2011) 119 ALD 534; [2011] FCA 53.
However, in oral submissions, the applicant argued that the Tribunal, in paragraphs 125 and 126 of its reasons for decision, failed to apply the language of the Convention and that indicated that the Tribunal had failed to consider whether the applicant faced a real chance of serious harm while travelling on the roads.
Paragraphs 125 and 126 of the Tribunal’s reasons for decision are as follows:
125.Having determined that the applicant does not face a real chance of serious harm in his home region of Nawur, the Tribunal has to consider the risk that the applicant may face in returning to his home region. The Tribunal has considered the country information as presented above, and considers that the applicant has reasonable options available for him to return to his home in Nawur without fear of harm on the way. The information shows that there are two alternative routes, one that is affected by seasonal issues from Bamiyan and another from Ghazni City directly, that the applicant can safely travel on. The Tribunal finds that the applicant can return to his home region. (emphasis added)
126.Further, the Tribunal considers that the applicant would not be of interest by the Taliban, as he does not have a connection with the Afghan Government or international community that would place him at risk, and accordingly, could travel to Nawur without being individually targeted for harm.
The Tribunal set out the correct test at the commencement of its reasons and at the commencement of paragraph 4. In paragraph 125, the Tribunal clearly meant that the applicant could return to Nawur:
without [any] fear of [any] harm on the way.
That is a sufficient application of the real chance test.
The applicant also relied in this context on SZQKE v Minister for Immigration and Citizenship (2012) 127 ALD 77; [2012] FCA 514 where it was emphasised that, in ascertaining whether an applicant faces a real chance of persecution if he were to return to his home region, the reviewer must consider whether the applicant faces a real chance of persecution while in transit to his home region. However, as shown in the passages quoted above, the Tribunal clearly did consider the question of transit at some length.
The applicant under ground 2 also said that the Tribunal failed to give proper, genuine and realistic consideration to the threat posed to the applicant by the Kuchis. This appears to be an attempt to seek merits review. The Tribunal noted the applicant’s claims at paragraph 128 of its reasons for decision as follows:
The applicant has described the activities of the Kuchi in coming to his land and his village. His family has been adversely affected by this in two ways, the disruption to family life, including the claimed destruction of the village mosque and limitations to access to school, and by the Kuchis taking over land owned by the applicant. The applicant claimed that due to the activities of the Kuchis in 1387, the applicant’s father had taken the applicant and his family away from the village and nearer to the city of Ghazni.
However, the Tribunal concluded at paragraph 132 of its reasons for decision that the applicant did not face a real chance of serious harm in connection with his land. In these circumstances, it cannot be said that the Tribunal did not consider the relevant claim.
For these reasons, ground 2 is not made out.
Ground 3: particular social group
The third ground of review in the amended application filed on 10 April 2013 is:
The Tribunal failed to consider an integer of the applicant’s claim, namely whether by reason of his membership of a particular social group the applicant was at risk of harm by the Kuchis and/or when travelling on the roads as a member of a particular social group of “Children of Afghanistan” or “Hazara children in Afghanistan.”
Particulars
(a)The applicant claimed to be a member of a particular social group, namely “Children in Afghanistan” or “Hazara children in Afghanistan.”
(b)The Tribunal accepted the existence of the posited groups and the applicant’s membership of the groups.
(c)The Tribunal erred in confining its consideration of this Convention ground to the harm represented by the Taliban.
(d)The Tribunal failed to consider and assess whether the applicant, by reason of his membership of the posited particular social group, was at risk of harm by the Kuchis and/or when travelling on the roads.
During the hearing before this court, the court noted that, as the applicant is now over 18 years of age, he was no longer a child. Consequently, remitting the matter to the Tribunal on this ground would be futile, as the claim no longer has any substance. When the court raised this with the applicant, he submitted that, if the matter were remitted, he could make a new claim based on social groups of young people, rather than children. I accept that submission. Therefore, ground 3 must be considered.
The Tribunal said at paragraphs 134 and 135 of its reasons for decision:
134.The applicant has claimed that he will be persecuted because of his membership of a particular social group, that being children in Afghanistan the applicant’s submissions presented argument regarding whether this particular social group could be made out. The Tribunal accepts that the applicant would be considered to be a child in Afghanistan, and that this group could be considered to be a recognisable social group for Convention purposes.
135.However no evidence was provided as to what persecution this group faces in Afghanistan. There is no evidence that the Taliban seek to persecute children in Afghanistan generally, nor persecute the unstated, but reasonably recognisable arising from the facts, the particular social group of Hazara children in Afghanistan. Again, the Tribunal refers to the information from the UNHCR and other sources that draw attention to particular groups and within the community that are targeted for harm by the Taliban and their supporters. The Tribunal does not accept that either ‘Children in Afghanistan’ or ‘Hazara children in Afghanistan’ are specifically targeted for harm in Afghanistan, and do not face a well-founded fear of persecution in Afghanistan. Accordingly, the applicant’s claims that he will be targeted for being a ‘child’ or a ‘Hazara child’ are not made out. The Tribunal finds that there is not a real chance that the applicant will be persecuted for this reason. (emphases added.)
The applicant submitted that the Tribunal did not consider whether the applicant faced a real chance of persecution by reason of his membership of a particular social group on the road or from the Kuchis.
The consideration of the particular social group issue in paragraphs 134 and 135 of the Tribunal’s reasons for decision encompasses risks on the road. The finding that children are not specifically targeted for harm in Afghanistan encompasses harm by the Kuchis. The Tribunal found that there was no evidence before it that children, or Hazara children, in Afghanistan, are persecuted. This ground is not made out.
Conclusion
As none of the applicant’s grounds has been made out, the application must be dismissed with costs.
I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Judge Riley.
Associate:
Date: 4 September 2013
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