MZZJK v Minister for Immigration

[2013] FCCA 2078

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZZJK v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 2078

Catchwords:
MIGRATION – Extension of time – Applicant an Afghan citizen and a Hazara Shia – consideration of ‘real risk’ test and ‘real chance’ test – extension of time refused.

Legislation:

Migration Act 1958 (Cth), ss.36(2)(aa), 477(1)-(2)

Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379
Minister for Immigration and Citizenship v SZQRB (2013) 210 FCR 505
MZYPW v Minister for Immigration and Citizenship and Another (2012) 128 ALD 520
MZYQU v Minister for Immigration and Citizenship (2012) 133 ALD 276
SZATV v Minister for Immigration and Citizenship and Another (2007) 233 CLR 18

Applicant: MZZJK

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: MLG 484 of 2013

Judgment of: Judge Whelan

Hearing date: 27 August 2013

Date of Last Submission: 27 August 2013

Delivered at: Melbourne

Delivered on: 6 December 2013

REPRESENTATION

Counsel for the Applicant: Ms Bennett

Solicitors for the Applicant: Victoria Legal Aid

Counsel for the First Respondent: Mr Smith

Solicitors for the First Respondent: Sparke Helmore

Counsel for the Second Respondent: No appearance

ORDERS

1. The application for an extension of time is refused.

2. The Minister’s name be amended to Minister for Immigration, Multicultural Affairs and Citizenship.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 484 of 2013

MZZJK

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. This is an application for judicial review of a decision by the Refugee Review Tribunal (“the Tribunal”) of 7 February 2013 to uphold a decision by a delegate of the Minister not to grant the Applicant a protection visa. The Applicant seeks an order that the decision of the Tribunal be quashed, a writ of mandamus directed to the Tribunal requiring it to determine the application according to law and a writ of prohibition directing the Minister to refrain from removing or deporting the Applicant pending determination of his claims according to law.

2. The application was lodged on 15 April 2013, which is 32 days after the expiry of the time limit prescribed in s.477(1) of the Migration Act 1958 (Cth) (“the Act”). The Applicant has applied in writing for an order that the time for making the application be extended under s.477(2) of the Act. The Court must therefore be satisfied that it is necessary, in the interest of the administration of justice, to make an order extending time. In the absence of such an order, the application is incompetent.

Background

1. The Applicant is a Hazara Shia and a citizen of Afghanistan. The Applicant arrived in Australia as an irregular maritime arrival in April 2012. In August 2012, the Applicant made an application for a protection visa. On 15 October 2012, a delegate of the Minister refused to grant his application. On 23 October 2012, the Applicant applied to the Tribunal for review of the delegate’s decision. A hearing took place on 23 January 2013, and the Tribunal affirmed the delegate’s decision on 7 February 2013.

The Tribunal’s Decision

1. The Applicant claimed that he would face harm by reason of being imputed to have political opinions that were anti-Taliban and

   
   

   anti-regime and by reason of his Shia Muslim faith and Hazara ethnicity. The Applicant also claimed he would face harm as a failed asylum seeker returning from a Western country.

2. The Tribunal rejected some of the Applicant’s claims but accepted that he was a Shia Muslim and a Hazara. It accepted that the village the Applicant came from in Uruzgan was in a volatile area largely controlled by the Taliban and that he had expressed anti-Taliban views.

3. The Tribunal accepted that it was not a remote possibility that the Applicant would face serious harm in Uruzgan from the Taliban for being a Hazara Shia, and that his fear of persecution in that area was well-founded for a Convention reason.

4. The Tribunal did not accept that the Applicant would be subject to cumulative discrimination amounting to serious harm or that he would be targeted by the government as a failed asylum seeker. The Tribunal did accept that it was not a remote or far-fetched possibility that the Applicant would be at risk of serious harm amounting to persecution if he returned to Uruzgan because he had lived in a Western country that was part of a coalition of foreign forces supporting the regime.

5. The Tribunal found, however, that there was not a real chance that the Applicant would face such harm if he relocated to Kabul. The Tribunal also found that it would be reasonable for him to relocate to Kabul to avoid harm.

6. With respect to the claim for complementary protection the Tribunal found, on the basis of the same information, that there were “no substantial grounds for believing that he would be accused of spying and be subjected to significant harm”[1] as a failed Hazara asylum seeker in Kabul.

   [1] Court Book filed 26 June 2013, p.253 at para.125.

Grounds for Review

1. The grounds upon which the Applicant relies in support of his extension of time application are:

   1.  I live in South Australia and there is no lawyer here to help me fill out the court forms.

   2.  I asked Victoria Legal Aid for some assistance, however due to the great demand for their services and their current backlog, they were only able to provide me with that assistance recently.[2]

   [2] Further Amended Application filed on 27 August 2013.

2. His application was supported by an affidavit of Ms YVONNE LIPIANIN (“Ms Lipianin) from Victoria Legal Aid (“VLA”).[3]

   [3] Affidavit In Support of Application for Extension of Time of Ms Yvonne Lipianin filed 12 August 2013.

3. The grounds for review are that the Tribunal:

   (a)Failed to properly apply the statutory test, i.e whether the Applicant faced a “real chance” of convention-related harm in his country of origin. Instead it considered whether the Taliban would “most probably” not make it a priority to pursue the Applicant.

   (b)Further or alternatively, the Tribunal incorrectly applied the relocation principles required by SZATV v Minister for Immigration & Citizenship [2007] HCA 40.

   (d)Failed to properly apply the statutory test for complementary protection by failing to properly consider whether there was a real risk the applicant will suffer significant harm and instead considering that the Taliban would “most probably” not make it a priority to pursue the Applicant.[4]

   [4] Further Amended Application filed 27 August 2013 at pp.3-4.

Applicant’s submissions

1. With respect to the extension of time, the Applicant submits that the decision of the Tribunal was sent to the solicitors who were assisting him at the time. The Applicant was informed of the outcome over the phone and was very distressed. He cannot recall what was said about his right to appeal. The matter was referred to VLA. Victoria Legal Aid wrote to the Applicant notifying him of the backlog in processing claims and enclosing the necessary forms to lodge an appeal.

2. As his former Red Cross worker could not assist him, she referred him to Sister PATRICIA SEALEY (“Sister Sealey”) who in turn contacted VLA seeking guidance on how to fill out the forms. Sister Sealey was also very busy and was not able to fill out the forms and return them to VLA until 5 April 2013. The forms were lodged by VLA on 15 April 2013.

3. The Applicant submits there is an acceptable explanation for the delay.

4. With respect to the first ground, the Applicant submits that the proper test as set out in Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 429 (“Chan”) is whether a person faces a ‘real chance’ of persecution:

   [A]n applicant for refugee status may have a well-founded fear of persecution even though there is only a 10 per cent chance that he will be shot, tortured or otherwise persecuted. Obviously, a

   
   

   far-fetched possibility of persecution must be excluded.

5. Those are the boundaries of what is meant by a real possibility – something greater than far-fetched but it need be no more than a

   
   

   10 per cent chance.

6. The Tribunal found that the Applicant would not be targeted in Kabul on the basis of his anti-Taliban views. That finding arose on the basis of country information contained in a Danish Immigration Service Report (“the DIS Report”):

   The same report indicates that while the Taliban are present in Kabul and their networks seem to be getting stronger, they most probably would not make it a priority to go after low profile people and as discussed with the applicant other sources indicate that their targets are foreign workers and people connected to the government.[5]

   [5] Court Book filed 26 June 2013, pp.250-251 at para.106.

7. Despite identifying the correct test, the Tribunal directed itself to the question of whether it was ‘probable’ that the Applicant would be targeted in Kabul for his anti-Taliban views, rather than whether there was a ‘real chance’ that he would be targeted.

8. With respect to the second ground, the Applicant refers to the test for relocation set out in SZATV v Minister for Immigration and Citizenship and Another (2007) 233 CLR 18 (“SZATV”). The Applicant referred the Court to paragraphs [9] to [19] of that judgment.

9. The test requires a consideration of two factors:

   ·Whether the applicant will suffer convention-related harm in Kabul; and

   ·Whether it is reasonable to relocate there having regard to the risk of any generalised violence in Kabul.

   The Applicant refers with respect to the latter question to the judgment of Kirby J in SZATV:

   A review of the literature suggests that this conclusion will not invariably follow, either as a matter of fact or law. Thus, internal relocation will not be a reasonable option if there are logistical or safety impediments to gaining access to the separate part of national territory that is suggested as a safe haven (95). Nor if the evidence indicates that there are other and different risks in the propounded place of internal relocation (96); or where safety could only be procured by going underground or into hiding (97); or where the place would not be accessible on the basis of the applicant’s travel documents or the requirements imposed for internal relocation (98).[6]

   [6] (2007) 233 CLR 18 at 80.

10. In MZYPW v Minister for Immigration and Citizenship and Another (2012) 128 ALD 520 (“MZYPW”), Flick and Jagot JJ in their joint judgment adopted those comments of Kirby J when looking at the “particular circumstances of the applicant for refugee status”,[7] and referred to the “risk of violence for non-convention reasons; and “the absence of family networks”[8] as matters to be considered.

    [7] (2012) 128 ALD 520 at para.9.

    [8] Ibid.

11. That was also picked up by Dodds-Streeton J in MZYQU v Minister for Immigration and Citizenship (2012) 133 ALD 276 (“MZYQU”) where her Honour found that the Independent Merits Reviewer had not considered the impact of the risk of harm in the form of generalised violence or harm due to personal circumstances on the reasonableness of the appellant’s relocation.

12. The Applicant submits that the Tribunal failed to consider the effects of generalised violence in Kabul on the Applicant as an individual. The Tribunal’s reasons and findings on reasonableness do not include an analysis of the individual Applicant’s expose to generalised violence in Kabul. It is clear that a level of violence exists in Kabul and it is not sufficient to say that it is not characterised as continuous, general and sustained.

13. The third ground relates to complementary protection. The Full Court of Federal Court in Minister for Immigration and Citizenship v SZQRB (2013) 210 FCR 505 (“SZQRB”) found that the ‘real risk’ test for significant harm is the same as the ‘real chance’ test under the Convention. A person may face a real risk of significant harm even if the risk of that harm occurring is substantially less than a probability.

14. The Tribunal should have considered whether there was a real risk that the Applicant would be at risk from the Taliban in Kabul, rather than whether or not they would most probably not bother to target him.

The First Respondent’s Submissions

1. On the issue of the extension of time, the First Respondent submits that the Applicant was legally represented at the Tribunal. There is no explanation as to why those lawyers did not lodge an application for review. There was a significant delay before the matter was referred to VLA. There is no explanation from the Applicant himself as to why he did not do anything.

2. Further, the matter is insufficiently meritorious to justify an extension of time in light of the fact that no proper explanation has been given.

3. This is essentially a relocation case. The first and third grounds of review go to whether there is an appreciable risk of the occurrence of the feared persecution. The second ground concerns the notion of practicability. 

4. Having found at paragraph [91] of its decision[9] that, based on country information, the area the Applicant came from was a volatile district where the Taliban controlled much of the area and that the Applicant had anti-Taliban views which he had shared with the other Hazaras, the Tribunal went on to reject a number of the Applicant’s specific claims before finding that the Applicant had a well-founded fear of persecution with respect to some of its findings in the Uruzgan area.

   [9] Court Book filed 26 June 2013 at p.248.

5. Quite rightly, the Tribunal then went on to consider relocation. At paragraph [103] of its decision,[10] by reference to SZATV, the Tribunal correctly sets out the law in this area. At paragraphs [104] and [105] of its decision,[11] the Tribunal refers to Department of Foreign Affairs and Trade (“DFAT”) advice and the DIS report and then goes on to the paragraph relied on by the Applicant.

   [10] Ibid at p.250.

   [11] Ibid.

6. The first point to be made is that the words “they most probably would not make it a priority to go after low profile people”[12] must be a reference to what the DIS Report said. These are not the Tribunal’s words. The Tribunal then goes on to talk about who are targeted, namely foreign workers or government officials. There is no evidence that the Applicant sought to bring himself into one of those categories.

   [12] Ibid, pp.250-251 at para.106.

7. The Tribunal then goes on to consider the Applicant’s claim to fear persecution in Kabul, simply by virtue of being a Hazara Shia and rejects that at paragraph [113] of its decision.[13] The Tribunal goes on to consider the Applicant’s other claims to fear persecution in Kabul and also rejects them.[14]

   [13] Court Book filed 26 June 2013 at p.252.

   [14] Ibid, p.252 at paras.114-115.

8. The First Respondent submits that the Tribunal correctly applied the test.

9. Essentially, the Applicant raises the same argument in the third ground. Section 36(2)(aa) of the Act applies to a non-citizen in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm.

10. The Full Court in SZQRB found that the reference to ‘real risk’ is synonymous with ‘real chance’.

11. The Tribunal is not required, in considering s.36(2)(aa) of the Act, to revisit and re-set out the factual findings made earlier. Provided on a fair reading of the Tribunal’s reasons, the claims have been dealt with, no error will occur. The Tribunal clearly found that the Applicant would not be considered or accused of being a spy in Kabul. There would be no difficulties in Kabul if he were regarded as Westernised or secular. Similar findings are made with respect to the Applicant being a failed asylum seeker.

12. With respect to the second ground – the reasonableness of relocation – the First Respondent submits that the Tribunal must consider any objections to relocation raised by the Applicant. The Applicant did claim that one of the barriers was that he would be at risk of violence in Kabul. Those claims are all set at the level of generality.

13. The Tribunal considered the issue of the security situation in Kabul. It made factual findings relating to the general security situation in Kabul. The Tribunal correctly set out the law and applied it.

Conclusions

1. The First Respondent correctly identified that the factors to be considered by the Court in determining whether an extension of time is in the interests of the administration of justice include:

   ·The extent of the delay;

   ·The reason for it;

   ·Any prejudice to the respondent;

   ·The impact on the Applicant if time is not extended;

   ·The interests of the public at large; and

   ·The merits of the substantive application.

2. In this case, the significant factors are the extent and reasons for the delay and the merits of the substantive application.

3. The extent of the delay is not insignificant but neither is it an extraordinarily long one. The reasons go to:

   ·The Applicant’s lack of English,

   ·His difficulty in accessing legal advice; and

   ·The workload strains on those trying to assist him. 

   Should the Applicant’s claims have merit, I am satisfied that the issue of the delay should not disqualify him from proceeding.

4. The question is therefore whether there is merit in the grounds of review.

5. Both the first and third grounds rely on a misapplication by the Tribunal of the ‘real chance’ or ‘real risk’ test. The first refers to the finding by the High Court in Chan that an applicant for the status of refugee would satisfy the definition if he showed a genuine fear founded on a ‘real chance’ that he would be persecuted for one of the stipulated (Convention) reasons if he returned to the country of his nationality.

6. The second refers to the finding of the Full Court of the Federal Court of Australia in SZQRB that the test for determining ‘a real risk’ of significant harm for the purposes of s.36(2)(aa) of the Act is the same as determining a ‘real chance’ of persecution.

7. The Applicant has honed in on one paragraph in the Tribunal’s findings where the Tribunal appears to be referring directly to the findings the DIS Report. That Report apparently concluded that the Taliban “most probably would not make it a priority to go after low profile people”[15] in Kabul. From that passage, the Applicant extrapolates that the Tribunal used a balance of probabilities test rather than the ‘real chance’ or ‘real risk’ test.

   [15] Court Book filed 26 June 2013, pp.250-251 at para.106.

8. A decision of the Tribunal, such as this one, must be read fairly. That is, paragraph [106] of the decision[16] should not be read in isolation but in the context of the entire decision. In my view, a fair reading of the decision indicates that the Tribunal both understood the relevant test and applied it, with respect to both the findings concerning whether there was a ‘real chance’ of the Applicant being persecuted in Kabul and also whether there was a ‘real risk’ that he would suffer significant harm there.

   [16] Ibid.

9. The second ground concerns the reasonableness of relocation. In SZATV the Court considered how that issue should be approached at paragraphs [23] and [24]:

   23.The Minister framed the issue, for a situation such as that presented by this appeal, as being whether it be reasonable, in the sense of practicable, for the appellant to relocate to a region where, objectively, there is no appreciable risk of the occurrence of the feared persecution.  This formulation does not suffer from the defects urged by the appellant. It does not turn upon a “hypothetical assumption”, nor does it prevent account being taken of the presence of a subjective fear of persecution, nor does it treat the presence of a “safe area” within the country of nationality as determinative of the existence of a well-founded fear of persecution.

   24.However, that does not mean that, without more, the formulation by the Minister is sufficient and satisfactory. What is “reasonable”, in the sense of “practicable”, must depend upon the particular circumstances of the applicant for refugee status and the impact upon that person of relocation of the place of residence within the country of nationality.[17]

   [17] (2007) 233 CLR 18 at paras.23-24.

1. The evidence before the Tribunal was that the Applicant had lived and worked in Kabul for two years or more. His paternal uncle had lived in Kabul for 10 years and the Applicant had stayed with him before he left Afghanistan. The Applicant was asked if he ever had any problems while he was living in Kabul and said personally nothing happened to him. The Applicant had lived in an area in Kabul which was a majority Hazara area.

2. The Applicant raised specific concerns about living in Kabul and general concerns about innocent people being killed in attacks there.

3. The Tribunal addressed these issues both by reference to country information and by reference to the Applicant’s own situation. On the question of generalised violence, the Tribunal referred to DFAT advice that:

   Despite recent attacks, levels of violence in Kabul could not be characterised as ‘continuous, general and sustained’. The great majority of Kabul’s population are able to go about their daily activities freely’.[18]

   [18] Court Book filed 26 June 2013, p.250 at para.104.

4. The Tribunal also referred to other reports that the targets of Taliban violence in Kabul were “foreign workers and people connected to the government”.[19]

   [19] Ibid at p.251 at para.106.

5. I am satisfied that the Tribunal properly applied the test of whether it was reasonably for the Applicant to relocate to Kabul and, in doing so, took account of his particular circumstances.

6. For these reasons, I consider the application to be without merit and the extension of time is therefore refused.

I certify that the preceding fifty-four (54) paragraphs are a true copy of the reasons for judgment of Judge Whelan

Date:  6 December 2013