MZZSL v Minister for Immigration
[2014] FCCA 1910
•29 August 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MZZSL v MINISTER FOR IMMIGRATION & ANOR | [2014] FCCA 1910 |
| Catchwords: MIGRATION – Application for extension of time – whether the Refugee Review Tribunal considered the Applicant’s claim, and the integers of the claim, to be a member of a particular social group consisting of Afghan males who have resided predominantly outside their country of origin – extension of time granted – application dismissed. |
| Legislation: Migration Act 1958 (Cth), s.477(2) |
| Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) Saito, Mamiko 2009, Searching For My Homeland: Dilemmas Between Borders, Experiences of Young Afghans Returning “Home” From Pakistan and Iran, July, Afghanistan Research and Evaluation Unit Synthesis Paper Series, |
| Applicant: | MZZSL |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | MLG 1483 of 2013 |
| Judgment of: | Judge Whelan |
| Hearing date: | 16 June 2014 |
| Date of Last Submission: | 16 June 2014 |
| Delivered at: | Melbourne |
| Delivered on: | 29 August 2014 |
REPRESENTATION
| Counsel for the Applicant: | Mr Goodwin |
| Solicitors for the Applicant: | Victoria Legal Aid |
| Counsel for the First Respondent: | Mr Brown |
| Solicitors for the First Respondent: | Australian Government Solicitor |
ORDERS
The application for an extension of time, pursuant to s.477(2) of the Migration Act 1958 (Cth), be allowed.
The Amended Application filed 2 June 2014 be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1483 of 2013
| MZZSL |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application for review of a decision made by the
Refugee Review Tribunal (“the Tribunal”) on 5 August 2013.
The Tribunal affirmed a decision by a delegate of the
First Respondent not to grant the Applicant a Protection (Class XA) visa.
The Applicant required an extension of time to file the application in this Court. The First Respondent did not oppose an extension of time being granted. In view of the facts that:
·The extension of time required is only two days;
·The Applicant had a reasonable explanation for the delay in filing the proceedings, being the difficulty in obtaining legal assistance;
·There is no identified prejudice to the First Respondent; and
·The Applicant’s arguments, as discussed below, have a reasonable prospect of success,
it is appropriate to grant the extension of time.
The issue in this case is whether the Tribunal considered the Applicant’s claim, or the integers of the claim, that he faced persecution or significant harm by reason of being an Afghan male who had resided predominantly outside his country of origin. It was not disputed that the claim was made.
The Applicant’s claims
The Applicant claimed, in a statutory declaration made on
25 August 2012, that:
·He was a 37-year old Shia Muslim of the Tajik ethnicity from the Logar province of Afghanistan;
·He moved with his family to Pakistan when he was one year old;
·He and his family are illegal immigrants in Pakistan;
·He and his family lived in Parachinar;
·In Parachinar, each household has to give a male to fight in the tribal army against the Taliban;
·He was in the tribal army;
·
One day, when he was returning from tribal army duty,
the Taliban ambushed him and his colleagues;
·One of his colleagues was killed and three were injured;
·He escaped unharmed;
·He left Pakistan to avoid being killed;
·He cannot return to Afghanistan as Shias and Tajiks are persecuted there by the Taliban;
·He has not lived in Afghanistan since 1975; and
·He knows nothing of Afghanistan and has no family or land there.[1]
[1] Court Book filed 10 December 2013, at pp.65-69.
In a written submission dated 15 July 2013 to the Tribunal,[2] the Applicant’s representatives stated that:
[2] Ibid, at pp.156-202.
The Applicant claims he fears he will be killed by the Taliban if he returns to Afghanistan because he is a Tajik Shia Muslim. Further to this, we submit that the Applicant’s membership of particular social groups, namely as a Shia Tajik, and as a male in Parachinar, where it is necessary for one male of each family to serve in the army, an Afghan male who has resided predominantly outside his country of origin, and as a returnee from the West.[3]
[3] Ibid, at p.157.
...
The Applicant fears persecution based on his membership of a particular social group. We submit he is a member of particular social groups, namely as a Shia Tajik, and as a male in Parachinar, where it is necessary for one male of each family to serve in the army, an Afghan male who has resided predominantly outside his country of origin, and as a returnee from the West. These groups inherently are imputed with anti regime political opinions.[4]
[4] Ibid, at p.160.
…
We submit that the Applicant is also at risk of harm on the basis of his membership of a particular social group and imputed political opinion as a person who have [sic] lived outside their country of origin and as a returnee from a western country.
The Applicant as a Returnee
The Applicant has spent more than one year in Australia. Further to this, the Applicant has not returned to Afghanistan since his departure in 1975 at the age of one. We submit that the plight of returning Afghan refugees is dangerous and the Applicant would be at further risk of harm and persecution if returned.[5]
[5] Ibid, at p.161.
...
The Applicant has had no experience of Afghanistan from the age of one year old. The extensive period in which he lived in Pakistan makes him identifiable in Afghanistan as it alters his cultural experiences. The difficulty that a returnee faces to integrate socially and culturally into Afghanistan after a period of long absence was examined by the following Austrian Centre for Country of Origin and Asylum Research and Documentation report, Query response a-7218 of 27 April 2010.
Afghanistan: General return and re-integration prospects for Afghans who were born or have been living in Iran or Pakistan for extended periods of time
The Afghanistan Research and Evaluation Unit (AREU) published a report in July 2009 drawing on experiences of young Afghan returnees from Pakistan and Iran (including second generation Afghans with no prior experience in Afghanistan). The report refers to returnees’ prospects of accessing labour and education, economic aspects, as well as ways of being perceived by other Afghans, highlighting also the situation of women.
The report observes that return and reintegration prospects are generally low for refugees with fewer social networks, lower economic status and lack of land outside Afghanistan:
“Returnees are usually considered less economically vulnerable than those who remained in Afghanistan throughout the conflict years, because of the education and skills that many were able to acquire, as well as the savings some were able to accrue. However, from the point of view of returnees (particularly those of the second generation), repatriation is often accompanied by a complex mix of stresses and emotional struggles, brought on by leaving the place they knew best. Returning may have meant that their experience of being a non citizen of the country, regardless of the degree of familiarity there, was simply repeated when they returned to their ‘homeland’; their psychosocial vulnerability (the feeling of ‘non-belonging,’ marginality or helplessness) may have been the same or worse than in the place of refuge.” (AREU, July 2009, p. 1-2)
“In general, it could be said that for those refugees with fewer social networks, lower economic status and lack of land remaining outside Afghanistan, the prospect of voluntary return and successful reintegration is low.” (AREU, July 2009, p. 34)[6]
…
We submit that if the Applicant were returned, he will potentially be subject to treatment as an ‘outsider’, even among other Shia Tajiks, having left Afghanistan when he was very young as well as seeking refuge in Australia. Furthermore, he would be relocating a young family to the area, representing a difficult and unreasonably challenging situation.[7]
…
A total of 368,786 refugees returned to Afghanistan from Iran and Pakistan during the year, according to UNHCR. Some returnees were displaced from their places of origin because of scarce economic opportunities and limited access to land, housing, drinking and irrigation water, health care and education. In several instances, the returnees’ land and property were occupied by local militias allied with the government.[8]
[6] Court Book filed 10 December 2013, at pp.164-165.
[7] Ibid, p.168.
[8] Ibid, pp.187-188.
The Tribunal’s reasons
The Tribunal found that the Applicant was generally credible. However, the Tribunal did not accept that the Applicant faced persecution or significant harm in Afghanistan as a Shia, as a Tajik, as a returnee or as any combination of those characteristics. Of particular relevance in relation to the issue before the Court, the Tribunal said:
The applicant’s claims can be summarised as follows. He is a Tajik Shia born in 1974 in Ghlahe, Khushi district, Logar province, Afghanistan. He worked as a street seller of fruit and vegetables. He is educated only until Year 4. He is married and has two children. His family moved to Parachinar in Pakistan when he was one year old. His mother told him it was because of the war in Afghanistan. His father was killed in 1975 but he is not sure of the events surrounding it (emphasis added).[9]
[9] Ibid, pp.220-221 at para.20.
…
It was submitted that the applicant would be at risk because of his membership of two particular social groups consisting of “male living in Parachinar where one male in each household has to serve in the tribal army”, “a male in Parachinar”, Shia Tajiks.
It was also submitted that he would be at riskas a returnee who had spent more than one year in Australia and that he would be accused of spying by the Taliban and as a person who had not been in Afghanistan since he was one (emphasis added).[10]
[10] Court Book filed 10 December 2013, p.221 at para.22.
…
According to a study of returnees by Saito, returnees who have lived abroad for an extended time often face discrimination based on their ‘non-Afghan-ness’:
Even for those refugees who were fiercely passionate about Afghanistan and harboured very negative feelings towards their host country (often due to experiencing social exclusion as a refugee), returning to Afghanistan often meant facing discrimination based on their “non-Afghan-ness”… As the label “Iranigak” (meaning “little Iran”) implies, Afghans who had remained in Afghanistan tended not to be welcoming towards some of their peers returning from Iran. The reaction towards returnees from Pakistan, however, tended to be more diverse, depending on the background and experience of each individual
(emphasis added).
Moreover, it was found that a general negative attitude was shown towards returnees:
By and large, there appears to be a general negative attitude shown towards some returnees, who are seen by some of those who remained in Afghanistan to have abandoned their country, fled war and enjoyed a prosperous life in exile. One of the reasons linked to such experiences was fear related to competition for resources. The second generation, who are likely to be in a better socioeconomic position than those who remained, are sometimes seen as undesirable intruders by their country fellows whose “territory” in education, work, property ownership and social status is threatened by the large-scale return of refugees. In addition, there seems to exist some stereotypical perceptions toward girls and women who came back to Afghanistan and were exposed to other worlds as tending to be “freer” in the eyes of some “remainees”.[11]
…
I have considered whether the applicant is at risk for his membership of two particular social groups consisting of “failed asylum seekers” and “returnees from a western country” and due to his period spent in Pakistan. I accept that these are particular social groups and he would be a member of both if he returned to Afghanistan. Country information cited above from both authoritative sources such as DFAT and the UK Foreign and Commonwealth and Office does not support that members of such groups are targeted and harmed in Afghanistan. Country information also indicates that there have been a large number of persons returning from Pakistan to Afghanistan in recent years and that Logar is one of the more common destinations. When the substance of the information was put to the applicant at hearing he stated that there was no safety for Shias in Afghanistan that he would be accused of being a non-Muslim. He said that he had heard that someone had died in Australia a month ago and that three people returned him to Afghanistan and that during the funeral the Taliban approached them and they escaped, however he did not give any further details of this incident and I do not accept that such an incident has any direct relevance to the applicant. I asked him how he thought his conduct and behaviour had changed since arriving in Australia and he said it was much safer here but he had been getting depressed as he had not seen his children. Later, he said he had changed his clothes and that his speech had changed since he was introducing English words into his speech. He also said that as a [sic] he had lived in Pakistan [he] had a different accent to those in Logar
(emphasis added).I have considered carefully the country information referred to in the agent’s submission and other information such as that of the Edmund Rice Centre in April 2012 but I have given preference to the DFAT information in particular because it is more recent and DFAT have been specially charged with giving advice of this nature to those involved in government decision-making.
The country information indicates that returnees can experience a general negative attitude and discrimination (Saito) but I do not consider that this amounts to either serious harm or significant harm. I accept that he speaks with a different accent and that his speech may have altered somewhat in his time during Australia and that he may wear different clothing but due to the country information, I do not accept that he faces a real chance of being accused of being a non-Muslim or a spy and being targeted by the Taliban, other Shias or anybody else. The above country information from DFAT and UK FCO is persuasive whilst the country information also indicates that a large number of persons have returned from Pakistan in recent years and that Logar has been one of the more popular destinations. I accept that the applicant and his family will experience substantial economic hardship if they return to Logar province, that he is unaccustomed to life there and that he will be disadvantaged by a lack of family connections there. However, I do not accept that these factors will constitute either serious harm as a result of systematic and discriminatory conduct or significant harm within the terms of s.36(2A) of the Act (emphasis added).On the basis of the country information, I find that the applicant does not face a real chance of persecution in the reasonably foreseeable future on account of membership of the above particular social groups and because of his time living in Pakistan. For the same reasons, I find that there are not substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Afghanistan that there is a real risk that he will suffer significant harm on these bases (emphasis added).[12]
[11] Ibid, p.232 at paras.53-54.
[12] Court Book filed 10 December 2013, pp.235-236 at paras.63-65.
Ground one: failure to consider claim
The first ground of review in the application[13] is:
The Tribunal committed jurisdictional error by failing to consider the applicant’s claim that he feared persecution and/or faced significant harm as a [sic] Afghan male who has resided predominantly outside his country of origin.[14]
[13] Amended Application filed 2 June 2014.
[14] Ibid, at p.4.
The Applicant submitted that his claim to fear persecution and significant harm as a returnee from the West (“the returnee from the West claim”) was distinct from his claim to fear persecution
and significant harm as an Afghan male who had lived
predominantly outside his country of origin (“the outsider claim”).
The First Respondent did not dispute that the two claims were distinct. The First Respondent argued that the Tribunal’s reasons were infelicitously expressed, but, on close examination, it could be seen that the Tribunal had, in fact, considered the outsider claim.
It is clear that the Applicant claimed to be a member of four, separate, particular social groups, being:
·Shia Tajiks;
·Males in Parachinar, where it is necessary for one male from each family to serve in the tribal army;
·Afghan males who have resided predominantly outside their country of origin; and
·Returnees from the West.[15]
[15] Court Book filed 10 December 2013, at p.157.
It is also clear that a person could have lived predominantly outside Afghanistan (in Pakistan or Iran, for example) and not be a returnee from the West; it would be an error to conflate those two groups.[16]
That is particularly so in the present case, where the Applicant has lived in the West for a relatively short period of time and in Pakistan for a very long period of time.
[16] See MZYOA v Minister for Immigration and Citizenship (2012) 135 ALD 87.
The Tribunal said, in relation to the particular social group issue:
I have considered whether the applicant is at risk for his membership of two particular social groups consisting of “failed asylum seekers” and “returnees from a western country” and due to his period spent in Pakistan. I accept that these are particular social groups and he would be a member of both if he returned to Afghanistan.[17]
[17] Court Book filed 10 December 2013, p.235 at para.63.
That formulation of the issues suggests that the Tribunal misunderstood the Applicant’s claims. The Applicant did not put the outsider claim as a gloss on his returnee from the West claim or as a gloss on his failed asylum seeker claim; it was put as a distinct particular social group claim.
It may be that the Tribunal did not accept that there is a particular social group in Afghanistan consisting of people who have lived predominantly outside Afghanistan. However, if that was the case, the Tribunal should have said so. That much is clear from Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 73 ALD 321 (“Dranichnikov”) where Gummow and Callinan JJ said:
At the outset it should be pointed out that the task of the tribunal involves a number of steps. First the tribunal needs to determine whether the group or class to which an applicant claims to belong is capable of constituting a social group for the purposes of the Convention. That determination in part at least involves a question of law. If that question is answered affirmatively, the next question, one of fact, is whether the applicant is a member of that class. There then follow the questions whether the applicant has a fear, whether the fear is well-founded, and if it is, whether it is for a Convention reason (citation omitted).[18]
[18] (2003) 73 ALD 321, p.326 at para.26.
The High Court said that the question of whether a group is capable of being a particular social group within the meaning of the Convention Relating to the Status of Refugees (“the Convention”) is, in part, a question of law. However, it was not submitted to this Court that there is, at law, no such particular social group in Afghanistan as people who have lived predominantly outside their country of origin. Consequently, I will proceed on the basis that there is such a particular social group.
The First Respondent argued that it was not necessary for the Tribunal to explicitly address the steps identified in Dranichnikov, provided that the Tribunal, in fact, considered whether the Applicant faced serious or significant harm for the reason alleged. The First Respondent noted that the Tribunal said:
… The country information indicates that returnees can experience a general negative attitude and discrimination (Saito) but I do not consider that this amounts to either serious harm or significant harm … However, I do not accept that these factors will constitute either serious harm as a result of systematic and discriminatory conduct or significant harm within the terms of s.36(2A) of the Act.[19]
[19] Court Book filed 10 December 2013, p.235 at para.64.
The reference to Saito was a reference to country information consisting of a study by Mamiko Saito in 2009[20] noted by the Tribunal at paragraphs 53 and 54 of its reasons for decision. Those paragraphs are as follows:
According to a study of returnees by Saito, returnees who have lived abroad for an extended time often face discrimination based on their ‘non-Afghan-ness’:
Even for those refugees who were fiercely passionate about Afghanistan and harboured very negative feelings towards their host country (often due to experiencing social exclusion as a refugee), returning to Afghanistan often meant facing discrimination based on their “non-Afghan-ness”… As the label “Iranigak” (meaning “little Iran”) implies, Afghans who had remained in Afghanistan tended not to be welcoming towards some of their peers returning from Iran. The reaction towards returnees from Pakistan, however, tended to be more diverse, depending on the background and experience of each individual
(emphasis added).
[20] Saito, Mamiko 2009, Searching For My Homeland: Dilemmas Between Borders, Experiences of Young Afghans Returning “Home” From Pakistan and Iran, July, Afghanistan Research and Evaluation Unit Synthesis Paper Series, it was found that a general negative attitude was shown towards returnees:
By and large, there appears to be a general negative attitude shown towards some returnees, who are seen by some of those who remained in Afghanistan to have abandoned their country, fled war and enjoyed a prosperous life in exile. One of the reasons linked to such experiences was fear related to competition for resources. The second generation, who are likely to be in a better socioeconomic position than those who remained, are sometimes seen as undesirable intruders by their country fellows whose “territory” in education, work, property ownership and social status is threatened by the large-scale return of refugees. In addition, there seems to exist some stereotypical perceptions toward girls and women who came back to Afghanistan and were exposed to other worlds as tending to be “freer” in the eyes of some “remainees”.[21]
[21] Court Book filed 10 December 2013, p.232 at paras.53-54.
The Tribunal’s consideration of the relevant claim was as follows:
I have considered whether the applicant is at risk for his membership of two particular social groups consisting of “failed asylum seekers” and “returnees from a western country” and due to his period spent in Pakistan … Country information cited above from both authoritative sources such as DFAT and the UK Foreign and Commonwealth and Office does not support that members of such groups are targeted and harmed in Afghanistan …
… The country information indicates that returnees can experience a general negative attitude and discrimination (Saito) but I do not consider that this amounts to either serious harm or significant harm …
… On the basis of the country information, I find that the applicant does not face a real chance of persecution in the reasonably foreseeable future on account of membership of the above particular social groups and because of his time living in Pakistan. For the same reasons, I find that there are not substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Afghanistan that there is a real risk that he will suffer significant harm on these bases.[22]
[22] Court Book filed 10 December 2013, p.235-236 at paras.63-65.
It is clear, from paragraphs 20 and 22 of the Tribunal’s reasons for decision,[23] that the Tribunal was aware of the Applicant’s claim that he had lived in Pakistan since he was one year old. It is clear, from paragraph 53 of the Tribunal’s reasons for decision,[24] that the Tribunal turned its mind to the situation of returnees who had lived abroad for an extended period, and returnees who had lived in Pakistan. It is also clear, from paragraph 64 of the Tribunal’s reasons for decision,[25] that the Tribunal was not persuaded that such people faced serious or significant harm in Afghanistan.
[23] Ibid, pp.220-221.
[24] Ibid, p.232.
[25] Ibid, p.235.
Although paragraph 63[26] of the Tribunal’s reasons for decision begins by identifying only two particular social groups, it seems to me that the Tribunal did, in fact, consider the Applicant’s claim to face harm by reason of having lived in Pakistan since he was one year old.
This ground is not made out.
[26] Ibid.
Ground two: failure to consider integers of claim
The second ground of review in the application is:
Further or alternatively, the Tribunal committed jurisdictional error by failing to consider integers of the applicant’s claim that he feared persecution and/or would suffer significant harm as a [sic] Afghan male who has resided predominantly outside his country of origin.
Particulars
The Tribunal failed to take into account the following integers of the applicant’s claim:
a. the social group was imputed with anti regime political opinions;
b. the plight of returnees is dangerous and the applicant would be at further risk of harm and persecution if returned;
c. the extensive time the applicant has lived outside his country in Pakistan makes him identifiable in Afghanistan as it alters his cultural experiences and increases risk of persecution and harm;
d. if returned, the applicant would potentially be subject to treatment as an outsider, even among other Shia Tajiks, having left Afghanistan when he was very young as well as seeking refuge in Australia; and
e. the applicant is particularly vulnerability due to his involvement in the tribal army in Parachinar during his time in Pakistan.[27]
[27] Amended Application filed 2 June 2014 at p.4.
The issue about the tribal army was specifically and adequately dealt with by the Tribunal at paragraph 60 of its reasons for decision.[28]
The other matters particularised in relation to this ground were dealt with by the Tribunal in its consideration of the issues at paragraphs 63 and 64 of its reasons for decision.[29] It is well established that it is not necessary for the Tribunal to expressly address every variation of every argument and every item of evidence raised by an applicant.
The obligation on the Tribunal is to consider claims. In this case, for the reasons expressed above, the Tribunal did so. This ground is not made out.
[28] Court Book filed 10 December 2013 at p.234.
[29] Ibid, at p.235.
Conclusion
As neither of the Applicant’s grounds have been made out,
the application must be dismissed.
I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Judge Whelan
Associate:
Date: 29 August 2014