MZZGH v Minister for Immigration

[2014] FCCA 984

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZZGH v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 984

Catchwords:
MIGRATION – Alleged failure to consider an integer under the complimentary protection provisions – wrong test under complimentary protection obligations – application dismissed.

Legislation:  
Migration Act 1958 (Cth), ss.36(2)(a), 36(2)(aa), 36(2A), 36(2B)(c), 46A(2)

NABE v Minister for Immigration and Multicultural Affairs and Indigenous Affairs (No.2) (2004)144 FCR 1
NAVK v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 124

Applicant: MZZGH

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: MLG 190 of 2013

Judgment of: Judge O'Dwyer

Hearing date: 15 August 2013

Date of Last Submission: 15 August 2013

Delivered at: Melbourne

Delivered on: 15 May 2014

REPRESENTATION

Counsel for the Applicant: Mr Stanton

Solicitors for the Applicant: Victoria Legal Aid

Counsel for the Respondents: Mr Smith

Solicitors for the Respondents: Sparke Helmore

ORDERS THAT:

1. The name of the First Respondent be amended to “Minister for Immigration and Border Protection”.

2. The time for the filing of the application is extended to 15 February 2013.

3. Leave is granted to the Applicant to file an amended application.

4. The application filed on 15 February 2013, as amended, is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT MELBOURNE

MLG 190 of 2013

MZZGH

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. By an application filed on 15 February 2013, the Applicant seeks a review of a decision of the Second Respondent (“the Tribunal”) dated 15 February 2012; which decision affirmed an earlier decision of a delegate of the First Respondent (“the Minister”) not to grant the Applicant a Protection (Class XA) visa.

2. Although the Applicant was out of time for such an application, the Minister consented to an extension of time.

3. The Applicant also sought leave to file an amended application, which was granted.

Background

1. The Applicant is a 26-year-old male citizen of Afghanistan, of Hazara ethnicity and Shi’a Muslim religion. He arrived in Australia as an unauthorised entry person, landing on Christmas Island on 9 January 2012. The Minister, pursuant to s.46A(2) of the Migration Act 1958 (“the Act”), afforded the Applicant an opportunity to lodge an application for a protection visa, which he duly did. On 1 June 2012 the Minister’s delegate refused to grant the visa. The Applicant then sought a review of that decision in the Tribunal, which was unsuccessful; hence his application to this Court.

2. Although the Applicant was born in the Jaghori district of Ghazni, province of Afghanistan, at the age of 2, he fled with his family, following the death of his uncle, to Quetta in Pakistan, where he had lived until leaving to come to Australia by boat. He claims to have limited education and skills.

Grounds of review

1. There are two grounds of review alleging the Tribunal committed jurisdictional error in two instances arising from Australia’s obligation to provide complementary protection.  The first alleges the Tribunal failed to consider an integer of the Applicant’s claims; namely, the Tribunal failed to consider the claim that the Applicant would suffer significant harm in the form of “degrading treatment” and an inability to survive or subsist. The second ground alleges the Tribunal applied the wrong test in its consideration of complementary protection by requiring the establishment of a Convention nexus in relation to his fear of harm, particularly travelling on the roads in Afghanistan.

Pertinent findings of the Tribunal

1. Towards the end of [112] of the Tribunal’s reasons, it stated:

   The Tribunal finds that the applicant would not be subjected to significant economic hardship or denial of access to basic services or denial of capacity to earn a living, where such hardship or denial threatens applicant’s capacity to subsist, for a Convention reason in his home area.

2. At [120] the Tribunal stated:

   The Tribunal finds that the applicant would not be denied adequate employment opportunities, both in terms of securing employment and a fair wage, and access to essential services because of his race, religion or any other Convention reason if he were to return to his home district. The Tribunal finds that the applicant does not face a real chance of persecution for a Convention reason on the roads in or around Jaghori.

3. When considering the issue of complementary protection, the Tribunal concluded at [123]:

   Having regard to the findings of fact above, the Tribunal does not accept that there is a real risk that the applicant will be arbitrarily deprived of his life by the Taliban. The Tribunal does not accept that, if the applicant returns to his home in the Jaghori district of Ghazni province, there is a real risk that he will suffer significant harm because he is Hazara or because he is a Shi’a Muslim.… The Tribunal finds that there is taken not to be a real risk that the applicant will suffer significant harm in Afghanistan as a result of the security on roads or general violence.

4. In conclusion, on the issue of complementary protection, the Tribunal at [124] stated:

   The Tribunal does not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Afghanistan, there is a real risk that he will be arbitrarily deprived of his life, that the death penalty will be carried out on him, that he would be subjected to torture, that he will be subjected to cruel or inhumane treatment or punishment or that he will be subjected to degrading treatment or punishment as defined. The Tribunal does not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Afghanistan, there is a real risk that he will suffer significant harm as defined in subsection 36 (2A) of the Act.

5. The above passages are those referred to and relied upon by the Applicant in support of his grounds of review. However, it should be noted that the Tribunal, in a lengthy analysis of the claims made by the Applicant using country information, found that any discrimination against Hazaras and Shi’a Muslims, which was found to exist, was not of such a degree as to constitute persecution on the basis of race or religion or for any other Convention ground.

Contentions and consideration

1. Counsel for the Applicant contended that the Applicant squarely raised for consideration under the obligations to provide complementary protection pursuant to s. 36(2)(aa), the Applicant’s inability to subsist if he was returned to Afghanistan. It was said that his inability to subsist in Afghanistan centred on discrimination against Shi’a Muslims, as well as not having the assistance of a family network to help gain employment.

2. The Applicant’s Counsel highlighted various instances where allusion was made to the difficulties the Applicant would face in respect of finding employment, and therefore be unable to subsist, without the support of family. Counsel for the Minister also sought to refer to material before the Tribunal in support of his contention that the claimed overlooked integer was not squarely raised, and also in support of his contention that the Tribunal was not in error where reference was made to the Convention in the context of Complimentary protection considerations.

3. The first reference relied on appeared in the Applicant’s  supporting declaration made on 8 April 2012 where he said at [36]:

   I have never been to Kabul and have no family or support network. Family and other networks are very important to finding employment and forming a secure life in Afghanistan.

   ... Finally, given the difficulties I would encounter finding employment in Kabul, the high cost of living and the extent to which Hazara people are discriminated against in Kabul, making a secure life for myself and my large extended family in Kabul would be near impossible.

4. From the transcript of the Applicant’s interview with the Minister’s delegate on 14 April 2012 the following passage was referred to:

   Q: Okay. So what do you fear would happen to you if you return to live in Afghanistan?

   I:  I fear my life will be in danger. Second, we are Hazara; we are Shi’a and Shi’a, will be killed. For being Hazara and Shi’a, we will be killed. And I don’t have anyone there.

   Q: Okay. Now, many people have - sorry, first of all, the incident involving the Taliban that happened many years ago and many Hazara people have now return to Afghanistan in the few years. Is there any reason why you and your family could not relocate back to your home village in Jaghori or to another area where it may be safer, like Kabul?

   I:  Me or my family cannot return because of fearing for our life. Second thing, we don’t have anything there. No land, no house, nothing. How we can return?

5. In a letter to the Tribunal from the Applicant’s solicitors dated

   
   

   16 August 2012, I was referred to the following:

   At [3];

   In particular, Mr [MZZGH] fears that he will be seriously physically abused, killed or subjected to an extraordinary level of discrimination that will threaten his ability to subsist.

   At [9 b & c]:

   Independent information suggests that Shi’as continue to face higher levels of discrimination and prejudice sufficient in its effects to threatened their ability to subsist.

   Independent information suggests that these racially – and religiously – discriminatory attitudes operate even within the state  apparatus itself, preventing Mr [MZZGH] from accessing state protection against persecution.

   At [12 b.]:

   Given the limited access to employment, health care, education and State services within Jaghori district and the reliance of the entire Hazarajat upon supplies obtained from other parts of Afghanistan, Mr [MZZGH] will be unable to subsist if he is restricted purely to Jaghori alone, particularly in the event of a medical emergency.

   At [43]:

   It has been recognised that “degrading treatment may also encompass the denial of socio-economic rights, such as insufficient provision of basic services necessary for a dignified existence, including access to health, shelter, Social Security and the education and protection of children.” Mr [MZZGH], as the victim of discrimination targeted against Shi’a Hazaras will be denied access to a substantial suite of socio-economic rights.

   At [44]:

   Independent country information clearly indicates that internally displaced Afghans face significant subsistence –  based threats, particularly in circumstances where they are forced – by their subjective fear of persecution in their home areas –  to relocate to refugee camps in Kabul.

   At [45]:

   Destitute upon their arrival, many internally displaced and returning Afghans are forced into these refugee camps because they are unable to afford accommodation elsewhere.

6. From country information provided to the Tribunal, the following was referred to:

   Minority group rights international have also reported ongoing discrimination, which prevents Hazaras from obtaining sufficient employment, education, or access to government services.

   
   

   The report stated “there appears to be no less discrimination against the majority of the Hazara population of Afghanistan, than in previous eras despite superficial improvements (principally in ministerial appointments).

   a. Shi’a Hazaras continue to face substantial discrimination which serves to limit their rights to movement, state assistance, religious freedom, and life;

   b.Shi’a Hazaras, due to their race and religion, face significant risks of violence from which the State may, (owing to widespread societal prejudice) be unwilling to protect them.

7. From the above references Counsel for the Applicant put emphasis on use of terms such as “secure life” and “subsist” against a background of a claim by the Applicant that he could not return to Afghanistan because he had no family there. It was also against a background where the Applicant said that if he was to be returned to Afghanistan, and had to reside in Kabul, he would not have the resources to stay anywhere other than a refugee camp.

8. Counsel for the Minister contended that the Applicant had at no stage claimed that he could not survive or subsist and that such inability constituted “degrading treatment” and therefore “significant harm”.

   
   

   No mention of the claimed overlooked integer was directly made in either the Applicant’s statutory declaration, or his representative’s submission to the Tribunal, or at the hearing.

9. The claims before the Tribunal centre on the religious and ethnicity attributes of the Applicant that were claimed to result in discrimination warranting the engagement of Australia’s protection obligations under the Convention. That was the basis of the claims before the Tribunal and that was the case responded to by the Tribunal with clear findings of fact that answered the Applicant’s claim for protection in the negative.

10. The Minister relied on NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No.2) (2004) 144 FCR 1 at [58] as authority that a decision maker is only required to consider the claims made by a claimant that were sufficiently raised on the material before the decision maker and not those depending for their exposure upon constructive or creative activity by the decision maker; and, further, that a conclusion that a decision maker has failed to consider a claim not expressly advanced is not to be made lightly. [1] 

    [1] NABE (No 2) at [68]

11. In my view, the question of the Applicant’s capacity to survive or subsist in Afghanistan was not squarely raised. It was never prosecuted by the Applicant, or his representatives in his supporting statutory declaration, submissions made on his behalf, or at the hearing.

12. Relevant in this case is the statement of Allsop J. (as he then was) in NAVK v Minister for Immigration and Multicultural and Indigenous Affairs[2] at [22]:

    Whatever adverb, or adverbial phrase is used to describe the apparentness of the unarticulated claim, it must, it seems to me, either in fact be appreciated by the Tribunal or, if it is not, arise sufficiently from the material as to require a reasonably competent Tribunal in the circumstances to appreciate its existence. A practical and common sense approach to everyday decision-making requires the unarticulated claim to arise tolerably clearly from the material itself, since the statutory task of the Tribunal is to assess the claims by reference to all the material, not to undertake an independent analytical exercise of the material for the discovery of potential claims.[3]

    [2] [2005] FCAFC 124

    [3] [2004] FCA 1695 at [15]

13. In my view a reasonably competent Tribunal in the circumstance of this case appreciates that the issue of subsistence did not arise for specific consideration under the complimentary protection obligation.

14. In respect of the second ground of review, namely that the Tribunal committed jurisdictional error by applying the wrong test when considering obligations under the complementary protection provision, the Applicant contends that the Tribunal required the Applicant to establish a Convention nexus in relation to his feared harm.

15. Clearly, the proper process for the Tribunal was to first consider whether Australia had any obligation to protect the Applicant under the Convention and should that consideration be negative, the next step is to consider what obligations may arise under the complimentary protection provisions of s.36(2)(aa) and s.36(2A) of the Act. The legislative framework under the complimentary protection provisions requires a consideration of whether there are substantial grounds for believing there is a risk that the Applicant will suffer significant harm.

16. The Applicant emphasises in support of his position certain passages in the body of the decision where the Tribunal made various negative findings which were related back to the Convention. I understood this to be an implicit argument that the Tribunal had a singular focus on the need to relate the claims to the Convention and that is why the Tribunal’s conclusion under the heading of complimentary protection at [123], stated that:

    The Tribunal does not accept that if the Applicant returns to his home in the Jaghori district of Ghazni there is a real risk that he will suffer significant harm because he is a Hazara or because he is a Shi’a Muslim.

17. The Applicant read this reference as a continuation of the Tribunal’s singular, and wrong, focus that there should be a nexus with the Convention.  That, it was said, is manifest, in [123] because references are made to the Applicant’s ethnicity and religion.

18. The Applicant contended that, in any event, there was no discrete consideration by the Tribunal of the Applicant’s socio-economic claim about the possible inability to subsist – an inability to form a ‘secure life’ – given the Applicant’s unique ethnicity and his difficulties in finding employment.

19. In response, the Minister highlighted various findings of fact made by the Tribunal, such as that at [112] of the Tribunal’s decision:

    The Tribunal finds that the applicant would not be subjected to significant economic hardship or denial of access to basic services or denial of a capacity to earn a living….

20. That finding of fact, in my view, notwithstanding the reference to the Convention, is a global finding of fact of such significance that consideration of the Applicant’s ability to survive or subsist is dispositive of any consideration of such under Australia’s complimentary protection obligations.

21. A failure to deal with such a claim, which was not squarely raised in any event, under the complimentary protection provisions in the circumstances of this case, where findings of fact, when fairly read, encompass those necessary anterior factual findings under those provisions, is not conclusive of a failure to consider an integer of a claim under the complimentary protection provisions. In similar fashion, the Applicant highlighted the Tribunal’s rejection of the Applicant’s claim to be at risk of significant harm in travelling on the road when returning to his home in the Jaghori district. However,  there was a clear finding of fact by the Tribunal, when considering obligations under the Convention, at [123]:

    The Tribunal does not accept that if the applicant’s return to his home in the Jaghori district of Ghazni province there is a real risk that he will suffer significant harm because he is a Hazara or because he is a Shi’a Muslim.

22. In any event, the Tribunal found at [120] and [123] that should there be a risk of harm whilst travelling on the roads, that was a risk applicable to the general population; which under s. 36(2B)(c) would exclude a successful claim for complimentary protection.

23. And again at [112] the Tribunal said:

    The Tribunal finds that the applicant would not be subjected to significant economic hardship or denial of access to basic services or denial of capacity to earn a livelihood with such hardship or denial threatens the applicant’s capacity to subsist for a Convention reason in his home area.

24. Whilst these findings of fact were made in the context of examining Australia’s obligations to the Applicant under the Convention, they are, nonetheless, so encompassing that they would negate any obligation to provide complementary protection to the Applicant, notwithstanding that there is no need to establish a nexus to the Convention.

25. In my view, the Tribunal properly applied the complementary protection criteria in relation to the claim highlighted by the Applicant notwithstanding the references to the Convention.

26. Accordingly, this ground is not sustainable.

Conclusion

1. Should the Tribunal have identified the purported integer and considered the Applicant’s qualification for complimentary protection under it, having regard to the encompassing findings set out above, the outcome would not be any different.  There would be no utility in remitting this matter back to the Tribunal.  The quoted approach as stated by Allsop J in NAVK resonates in respect of this matter.

2. For the above reasons, the application filed on 15 February 2013, as amended, is dismissed.

I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Judge O'Dwyer

Associate: 

Date:  15 May 2014