MZZFM v Minister for Immigration

[2014] FCCA 975

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZZFM v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 975

Catchwords:
MIGRATION –Refugee Review Tribunal – whether the Tribunal erred in its consideration of whether or not it was reasonable for the Applicant to relocate in Afghanistan – no matter of principle – application dismissed.

NBCY v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 922
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437
SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18

Applicant: MZZFM

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: INDEPENDENT PROTECTION ASSESSOR

File Number: MLG 89 of 2013

Judgment of: Judge Riethmuller

Hearing date: 11 December 2013

Date of Last Submission: 11 February 2014

Delivered at: Melbourne

Delivered on: 12 June 2014

REPRESENTATION

Counsel for the Applicant: Ms Burchell

Solicitors for the Applicant: Victoria Legal Aid

Counsel for the Respondents: Ms Latif

Solicitors for the Respondents: Clayton Utz

ORDERS

1. The Application filed on 24 January 2013 and the Amended Application filed 12 July 2013 be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 89 of 2013

MZZFM

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

INDEPENDENT PROTECTION ASSESSOR

Second Respondent

REASONS FOR JUDGMENT

Background

1. The Applicant seeks judicial review of a decision of the Independent Protection Assessor made on 9 August 2011, which affirmed a decision of a delegate of the First Respondent to refuse the Applicant a protection (class XA) visa.

2. The Applicant is a citizen of Afghanistan. He is of Tajik ethnicity and Sunni Muslim religion (CB 187).

3. The Applicant entered Australia as an unauthorised maritime arrival on 25 March 2011.

4. On 19 April 2011 the Applicant lodged his application for the protection visa and was interviewed by a delegate of the Minister (CB 184).

5. The Applicant claimed to fear persecution on three grounds: by reason of his ethnicity; actual or imputed political opinion; and membership of particular social groups, namely failed asylum seekers (CB 215).

6. On 12 July 2011 a delegate of the First Respondent refused to grant the Applicant the visa (CB 113-131).

7. The Applicant made a request for a Protection Obligations Evaluation by the Independent Protection Assessor for merits review of the delegate’s decision on 19 April 2011.

The Independent Protection Assessor’s findings

1. The Assessor stated that he listened to the recordings of the Applicant’s previous interviews (CB 187, 192, 196).  The Applicant made a number of claims in these interviews and in submissions put to the Assessor which can be summarised as follows:

   a)The Applicant’s daughter had been persecuted by the Taliban for attending school (CB 188-202, 214-215).

   b)The Applicant claimed to have suffered persecution because he was labelled a government spy.  The Applicant submitted that this arose due to his daughter attending school, his travelling to and from Kabul regularly for work, and not wearing a beard (CB 188, 190-193, 195, 198, 200, 203, 214).

   c)The Applicant’s uncle had left him land and this resulted in a land dispute with a local man (CB 188, 192, 194, 200, 214-215).

   d)The Applicant submitted that this dispute resulted in him being kidnapped and beaten. The Applicant claimed he was accused of being a Taliban spy (CB 188-190, 192-193, 199, 202-203, 215).

   e)The Applicant claimed that he had been harassed in Kabul by the Taliban for not wearing a Turban (CB 197).

   f)The Applicant asserted that he could not return to Kabul as he could not support his dependents in the context of a housing shortage and high rents and his financial means (CB 194, 198, 210). In addition, the Applicant submitted that relocation to Kabul was not safe as it was too close to his home region (CB 197) and his daughters could not safely access school there (CB 196).

2. The Assessor accepted that the Applicant may have faced persecution in his home province due to the strong presence of the insurgency in that region (CB 220); however he rejected many of the specific occurrences involving the insurgency that the Applicant put to the Assessor (CB 220). He found that the persecution was localised and would not have an effect beyond the Applicant’s home region (CB 220-223)

3. The Assessor did not find the Applicant’s claims in respect of the land dispute credible and rejected ‘all the claims that flow from this story’ (CB220).

4. The Assessor also considered whether the Applicant could relocate to Kabul (CB 220-224). He considered that the Applicant’s work and family connections would allow him to ‘establish a household where his wife and children could live with him’ (CB 220, 222, 224).

5. Although the Assessor acknowledged that there were reports of children being harmed at school in Kabul, he found that schools continued to operate. He found that the Applicant’s daughters could have access to schools without the children or the Applicant facing more than a remote chance of serious harm amounting to persecution (CB 221).

Grounds

1. The Applicant sets out four grounds in his amended application:

   1. The Second Respondent (“the assessor”) denied the applicant procedural fairness and/or made an error of law by failing to consider a claim or an integer of a claim.

   2. The assessor denied the applicant procedural fairness and/or made an error of law by failing to take into account relevant consideration in its assessment of relocation.

   3. The assessor denied the applicant procedural fairness by failing to provide the applicant with adverse country information and/or an opportunity to comment upon adverse country information.

   4. The assessor denied the applicant procedural fairness and/or committed a legal error by failing to consider the applicant’s claim that he had suffered physical injury as a result of being assaulted.

Ground One

1. It was argued by the Applicant that the Assessor failed to take into account relevant information about his daughter’s safety in attending school in Kabul. In particular, that the Assessor failed to determine whether his daughter had been assaulted. The Applicant claimed that this was critical to the question of whether it was reasonable and practicable for the applicant and his family to relocate to Kabul due to the proximity of his home region.

2. The Assessor found that the Applicant’s submissions lacked credibility saying (CB 218-119):

   177. The claimant’s particular story is in two parts: the first involves an occurrence in his Logar province village that he says has particularly gained him the adverse interest of the Taliban, and the second part centres on the theft by a ‘powerful local warlord’ of property bequeathed to him by an uncle in Takhar province. However, when I consider the claimant’s evidence concerning this story, I do not find it credible.

   …

   182. In sum, I do not accept that many of these occurrences ever happened. I do not accept that: he complained to a friend/village elder Haji Azizullah; that this was reported to the Taliban who decided to harm/kill; or that Talebs then attacked and beat the family leading to the death of the mother. I reject all of this story and do not accept that the insurgency, with the intention of causing him serious harm, has searched for him in his home village or in Kabul or anywhere else…

3. The Assessor noted that (CB 221 and 224):

   189. … Despite reports of children harmed at a school, schools continue to operate in Kabul and I conclude his daughters could access schooling there without facing in Kabul more than a remote chance of serious harm amounting to persecution, and without the claimant as their father, facing more than a remote chance of serious harm amounting to persecution.

   …

   199. …Schools continue to operate in Kabul and I conclude his daughters could access schooling there.

4. The Assessor accordingly found that it was reasonable for the Applicant to relocate to Kabul (CB 224):

   199. … I do not accept that he faced persecution in the past in Kabul, and I do not consider there is any psychological reason that bars or hinders him from establishing him and his household in Kabul. 

   Schools continue to operate in Kabul and I conclude his daughters could access schooling there.

5. The main thrust of the Applicant’s argument is that the Assessor failed to make a practical finding as to whether the Applicant’s daughter was assaulted by the Taliban. However, this is not an application by the daughter, who is not in Australia, nor an applicant. The Applicant’s case relies upon the harm that he alleges followed his making a complaint about the daughter’s treatment. The Applicant’s only knowledge of the incident is what his daughter told him.

6. The claim by the Applicant is based upon the consequences of his complaining to an elder about his daughter’s treatment. Whilst one presumes the daughter was truthful, the truth of her allegations is not central to the case, but the consequences to the Applicant (who has no evidence of the incident but his daughter’s word).

7. Logically I do not see that the Assessor needed to go beyond considering the potential harm to the Applicant flowing from his complaint.

8. These consequences were dealt with by the Assessor and rejected (see para.182 as quoted above).

9. Had the daughter been an applicant a finding about the alleged assault would have been needed to deal with her claim, but she is not an applicant.

10. However, counsel developed the argument to the effect that this was relevant to the consideration by the Assessor with respect to relocation.

11. The High Court found in SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18 that the determination of whether it is reasonable for an individual to relocate is a two stage test. First, the decision maker must consider whether an individual will continue to face persecution within the meaning of the Refugee Convention in the proposed place of relocation [at 26]. Second, it must be reasonable for the individual to relocate [at 28].

12. In examining reasonableness, the Full Federal Court in Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at [442] stated that in considering whether it is reasonable to relocate one must consider:

    …the range of the realities that may need to be considered on the issue of the reasonableness of relocation extends beyond physical or financial barriers preventing an applicant for refugee status from reaching safety within the country of nationality… It should be restricted in its application for persons who can genuinely access domestic protection, and for whom the reality of protection is meaningful. In situations where, for example, financial, logistical, or other barriers prevent the claimant from reaching internal safety; where the quality of internal protection fails to meet basic norms of civil, political, and socio-economic human right; or where internal safety is otherwise illusory or unpredictable, state accountability for the harm is established and refugee status is appropriately recognised.

13. Significantly, the Assessor did find that the Applicant was at risk of serious harm if he stayed in his home village, finding:

    183. Nonetheless, country information shows that the insurgency is strong in Logar province with the Taliban having the largest presence closely followed by the Haqqani network. An independent analysis of security incidents indicates that Logar province accounted for one fifth of attacks by insurgents in the central region in 2010, and the Taliban and the Haqqani network maintain a strong presence in the districts of Kharwar, Baraki Barak, Charkh and most recently Azrah. In this light, elements of his personal circumstances might well have brought him undue attention from local villagers: he had largely lived in Kabul for a number of years, travelled to and from Kabul regularly, and was financially well-off as he operated a successful business. At his interview on 23 April 2011 he stated that a big Pashtun tribe in Logar said he should wear a turban and grow a beard and follow Pashtun rules: he is a Tajik and was viewed suspiciously by this Pashtun tribe.  I therefore cannot discount the possibility that he was, as he claims, viewed suspiciously by the Pashtun locals and even at times harassed about his travel to Kabul and asked to report on conditions there. Additionally, his demeanour at my interview leads me to consider that he genuinely considers his daughters should be able to receive schooling – a view that conflicts with the views of the insurgency. In sum, I conclude that in the reasonably foreseeable future, there is more than a remote change that he would face serious harm amounting to persecution for the cumulative reasons of his person circumstances, wealth, and social views in his home in Logar province.

    (Emphasis added)

14. The Assessor then considered whether the claimant was at risk in Kabul, saying:

    189. The country information does not show that Tajiks are targeted and persecuted in Kabul. Nor do I accept that the insurgency has the particular adverse interest in him that he claims (that is, his claims that a conversation he had was relayed back to the Taliban who then decided to harm/kill him and so his family were attacked). I do not accept that the local village harassment and suspicion about him that he describes – and which I find there is more than a remote chance may cause him to face serious harm in his village in the reasonably foreseeable future- would motivate the insurgency to search for and target him in Kabul if he returns to Afghanistan. Despite reports of children harmed at a school, schools continue to operate in Kabul and I conclude his daughters could access schooling there without facing in Kabul more than a remote chance of serious harm amounting to persecution, and without the claimant as their father, facing more than a remote chance of serious harm amounting to persecution. 

15. The Assessor did not limit themselves to the first step, but went on to consider the second step, the reasonableness of relocation, addressing a broad range of factors, saying:

    199. Based on the material before me and in light of the foregoing, when I consider individually and cumulatively his particular circumstances, his past experiences, and country information about Afghanistan, I conclude that it is reasonable for the claimant to seek refuge in Kabul.  In sum, I consider that:

    ·As a male aged about age 40, and the family head, he is a person who is able to establish his household in Kabul.  There is no medical information before me that his is unable for medical reasons to live in Kabul.  At my interview he discussed the availability of hospitals in Kabul and he described one as quite good even though he had not attended it.

    ·As I have discussed above, he has spent considerable time living and working in Kabul.  I conclude he resided in Kabul whilst he operated his chicken soup business from a rented shop, and that his wholesale business was solely operated from Kabul.  Based on his own evidence he has significant knowledge of living and business conditions there.  As well, despite his lack of education, his past business activities in Kabul, his business acumen and demonstrated ability to change occupations from soup seller to wholesaler with the help of contacts, lead me to conclude he has the skills to seek and get work in Kabul.  I note that whilst he spoke of travelling to some other provinces to wholesale goods in his last occupation, he also indicated he largely wholesaled in the Kabul market: I conclude he could choose to undertake the work solely in Kabul.

    ·The considerable time he has lived and worked in Kabul, and his description of his work there, leads me to conclude he had access to extended community structures and social networks in Kabul.  In addition, he is able to practice his Sunni religion in the city which has operating schools and a sizeable Tajik population.  I can see no ethnic, cultural or religious considerations that would bar or hinder him from successfully establishing his household there and again obtaining work/operating a business.

    ·I note his evidence that his father-in-law had been renting a home in Kart-e-now in Kabul, and I do not find credible his evidence that the relative moved without telling the claimant his new address.  I conclude that in fact the father-in-law remains in Kabul and that the claimant (whilst he does not have close family in Kabul) has access to extended family structures in Kabul.

    ·Despite being from Logar province, he operated businesses in Kabul- the latter being particularly financially successful- and I find no political or social reason that he could not do so again if he returns. 

    ·I do not accept that he faced persecution in the past in Kabul, and I do not consider there is any psychological reason that bars or hinders him from establishing him and his household in Kabul. 

    ·Schools continue to operate in Kabul and I conclude his daughters could access schooling there.

16. Counsel for the Applicant attempted to develop the argument to one similar to that considered in NBCY v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 922. In NBCY the Court considered an applicant who raised a real concern for the safety of his family if he moved from North Korea to South Korea, which concerns were considered ‘possible’ by the Tribunal due to his and his family’s “political profile” (see [23]-[26]). However, on the facts as found here, such a case does not arise on the facts as he does not allege his family would remain in the village. It is not a case where under the second step the safety and ability to access schooling and other resources by the applicant and his family have not been considered.

17. Thus, on the findings of the Assessor, the relocation case was said to turn on whether it was reasonable for the Applicant to relocate to Kabul with his family.  At present the Applicant says that his family have moved to Pakistan and he has come to Australia. It was argued that if the Applicant obtained a Permanent Protection Visa he will apply for a Family Reunion Visa (which will take 2-3 years).

18. The real issue appears to be a complaint about the merits of the finding that the Applicant could relocate to Kabul and that his daughter could attend school there, in light of the event and the distance from his village to Kabul.  Merits review is not available in the Federal Circuit Court of Australia. 

19. I must dismiss this ground.

Ground Two

1. The Applicant’s second ground is:

   2. The assessor denied the applicant procedural fairness and/or made an error of law by failing to take into account relevant consideration in its assessment of relocation.

2. This ground relies upon the argument about whether the Assessor accepted that the daughter had been assaulted and is adequately dealt with by the reasons set out above.

Ground Three

1. This ground fails as the Applicant was given an opportunity to comment on country information as set out in the decision.

2. The Assessor noted that:

   115. I indicated [to the applicant] country information shows he would not face serious harm on return, merely because he is returning from Australia, particularly to Kabul as that city is government controlled.

   116. The claimant discussed how if he returns to Kabul, Ataqul is after him because of the land issue, and the other black mark is the accusation he was passing information to the Taliban.  The claimant understands the Taliban will have no mercy- they beat his family- they will chase him to Kabul.  His jaw was injured. 

   117. I indicated ‘asylum seekers from the West’ are included in this country information: none of the reports show returnees are targeted for serious harm because they are returnees.

   118. The claimant again discussed how his specific problem is Ataqul, as well as the Taliban- and his lack of a beard and turban.  I indicated I got that he had been harassed for not having a beard and Turban, but not that he was considered a government spy given his evidence that he was a farmer and a wholesaler.  The claimant discussed how the Taliban have no mercy and the same year they beat his daughter they killed 2 girls- they are very savage and as he said they had beaten him on his wedding night.

   119. I next discussed country information concerning Kabul.  I pointed out a savage attack had been against Shias but he is a Sunni.  I also discussed the practical aspects of him living in Kabul.  I pointed out it is financially difficult to live there and he had mentioned those difficulties.  Nonetheless he has said he had $20,000 that is a very large sum for Afghanistan.  (The claimant agreed.) He had spoken about a good hospital in Kabul.  His employer, Roohulla lives in Kabul, and the father-in-law was living there and might still be.  I pointed out it is not likely he lost contact with the father-in-law.  His personal circumstances before he left, plus the country information about Kabul, suggests he could live in Kabul with his family.

   …

   186. No specific information has been found in the sources consulted regarding the ethnic demography of Kabul province or Kabul city. Indeed, the UNHCR reported in December 2010 that no population census has been conducted in Afghanistan since the 1970s. Nonetheless available country information indicates that Kabul is now a large city of up to 5 million people, is ethnically diverse and has a large Tajik population. No recent information was found in the sources consulted regarding the current position of Tajiks, in Kabul. There is no information before me that the insurgency has specifically attacked Tajiks there and based on the material before me, I do not find that the claimant faces persecution in Kabul either from state or non-state agents because of his Tajik ethnicity.

   187. The claimant referred to indiscriminate explosions in Kabul. The submission of 15 May 2012 discusses country information concerning security conditions in Kabul and states “With respect, there is absolutely no evidence that Kabul is to any extent controlled by the government”. I accept country information shows that the insurgency has conducted terrorist attacks in Kabul. Nonetheless, the attacks have largely been against high profile targets – such as political leaders, government agencies, overseas organisations and troops, and area frequented by foreigners. Bust the claimant is an Afghan Tajik, previously a wholesaler, who has no profile in politics, in government or in overseas organisations. Whilst the UNHCR reported in December 2010 that a number of provinces were in a situation of generalized violence, the report did not include Kabul. Nor do I accept the more recent country information shows that Kabul is now in a situation of generalized violence. The submission makes reference to a number of reports of insurgency attacks in and around Kabul in the past few years, but I do not accept the claimant has a profile that would lead him to being targeted by the insurgency in Kabul.

   …

   189. The country information does not show that Tajiks are targeted and persecuted in Kabul. Nor do I accept that the insurgency has the particular adverse interest in him that he claims (that is, his claims that a conversation he had was relayed back to the Taliban who then decided to harm/kill him and so his family were attacked). … Despite reports of children harmed at a school, schools continue to operate in Kabul and I conclude his daughters could access schooling there without facing in Kabul more than a remote chance of serious harm amounting to persecution, and without the claimant as their father, facing more than a remote chance of serious harm amounting to persecution.

   …

   193. I note the 2010 UNHCR report discusses voluntary returns but does not suggest returnees are targeted for that reason alone. The report also discusses the security provided by extended family and community structures of Afghan society, particularly in rural areas where infrastructure is not as developed.

   …

   196. … I note the UNHCR advice concerning the overall difficulties of relocation in Afghanistan:

   The traditional extended family and community structures of Afghan society continue to constitute the main protection and coping mechanism, particularly in rural areas where infrastructure is not as developed. Afghans rely on these structures and links for their safety and economic survival, including families and tribes is limited to areas where family or community links exist, Afghans, particularly unaccompanied women and children, and women single head of households with no male protection, will not be able to lead a life without undue hardship in areas with no social support networks, including in urban centres.

   197. I also note the recent report from the Danish Refugee Council that states many displaced families in Kabul have had no option but to set up tents when they arrive there, with only limited assistance available for these ‘vulnerable’ settlements, and without access to food, water, medical aid or jobs; and being forced to live in ‘inhuman and often health-threatening’ conditions (Afghanistan: Reaching out to poor Afghans in urban tent settlements, Danish Refugee Council, 16 February 2011). The U.S. Department of State 2010 Human Rights Report: Afghanistan, 8 April 2011, similarly indicates refugees who return to Afghanistan are known to reside alongside urban slum dwellers in unauthorised, informal settlements in the larger urban areas of the cities, with likely ‘serious deficiencies in several areas’, including health and security of tenure.

   198. In the present case, I considered whether the claimant would be able to survive socially and economically given his own particular circumstances….

   199. … I conclude that it is reasonable for the claimant to seek refuge in Kabul.

1. The applicant has identified many details in the reports referred to by the Assessor in footnotes to the decision. It is alleged this was not put to the applicant. There is no transcript of the hearing, and so there is no evidence of what was actually put. Even if all the detail was not put, the Assessor was only obliged to put the substance, and it appears from the decision that the Assessor did that.

Ground Four

1. The fourth ground the Applicant relies upon concerns the Assessor’s perceived failure to consider the Applicant’s claim of physical injury resulting from an assault. 

2. This ground also fails on the basis of the reasons of the Assessor.

3. The Assessor noted in regards to the Applicant’s injuries:

   124. … The claimant forgot to mention that he has 5 broken teeth.  He has dental records that show an injury- a beating- and these can be provided.  I pointed out he should provide all evidence that he thinks will assist his case and I would consider everything he provides. [the claimant stated after the beating his face was swollen.] …

   125. I asked the claimant if he had anything else to say, even about things I had not asked him about.  The claimant stated he had a harsh time and bad incidents- he had been harassed a lot in Afghanistan.  There is a humane society in Australia.  He had a headache for a long time.  He is emotionally stressed.  He is taking medication.  He cancelled his appointment for his teeth today.

4. The Assessor made the following findings on the issue of the Applicant’s alleged assault:

   181. The second part of the claimant’s story is that at the very time the Taliban decided to harm/kill him, he was involved in a property dispute/theft in Takhar province.  Land disputes and crime are prevalent in Afghanistan, and so a general claim of such a dispute is entirely consistent with country information.  However, setting aside the extraordinary contemporaneity of these occurrences (which I do not consider determines the truth of the matter), I have serious concerns with this claim.  I do not find credible his story of being abducted to a building in Takhar province by Ataqul and gunmen and yet, having invested the resources into capturing, imprisoning and beating him, the gunmen untied his hands and their subsequent hashish smoking so distracted them that he was then able to easily dig his way out and escape to freedom and promptly return to Kabul.  Another concern I have with his story is that despite Ataqul falsely claiming to have purchased the land from the uncle- land where the aunt, who had no children or means of support, lived- and the claimed extreme actions in abducting and torturing him, he says he has no idea about what happened to the aunt and indeed, has made no effort at all to find out about the aunt’s subsequent welfare.

5. The Assessor considered the claim and rejected it on the merits. This ground must be rejected.

6. As no grounds have been upheld, I therefore find that the application must be dismissed. 

I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller

Associate: 

Date: 12 June 2014