MZZXD v Minister for Immigration
[2015] FCCA 104
•23 January 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MZZXD v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 104 |
| Catchwords: MIGRATION – Application lodged out of time – consideration of reasons for delay – consideration of merits of claim – whether Refugee Review Tribunal failed to exercise jurisdiction by failing to consider an integer of the Applicant’s claim – Court not satisfied that Refugee Review Tribunal assessed and made findings with respect to Applicant’s claim concerning the impact on his position when the international forces were withdrawn from Afghanistan in 2014 – critical integer of Applicant’s claim – extension of time granted – writs issued. |
| Legislation: Migration Act 1958 (Cth), s.477 |
| ApplicantWAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184 Wingfoot Australia Partners Pty Ltd & Anor v Kocak & Ors (2013) 303 ALR 64 |
| Applicant: | MZZXD |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | MLG 2190 of 2013 |
| Judgment of: | Judge Whelan |
| Hearing date: | 11 November 2014 |
| Date of Last Submission: | 11 November 2014 |
| Delivered at: | Melbourne |
| Delivered on: | 23 January 2015 |
REPRESENTATION
| Counsel for the Applicant: | Ms Grinberg |
| Solicitors for the Applicant: | Victoria Legal Aid |
| Counsel for the First Respondent: | Ms Symons |
| Solicitors for the First Respondent: | Clayton Utz |
ORDERS
The application for an extension of time, pursuant to s.477(2) of the Migration Act 1958 (Cth), be allowed.
A writ of certiorari issue quashing the decision of the
Second Respondent dated 5 September 2013.
A writ of mandamus issue requiring the Second Respondent to hear and determine the matter according to law.
The First Respondent pay the Applicant’s costs of, and incidental to, the proceeding.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 2190 of 2013
| MZZXD |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application for judicial review of a decision of the
Refugee Review Tribunal (“the Tribunal”) made on 5 September 2013[1] which affirmed a decision of a delegate of the Minister
(“the First Respondent”) to refuse the Applicant a Protection (Class XA) visa. The initial application for review was lodged on 11 December 2013. It was therefore filed outside of the 35 days required by s.477(1) of the Migration Act 1958 (Cth) (“the Act”).
[1] Court Book filed 15 April 2014, at pp.267-286.
On 24 July 2014, the Applicant filed an amended application for judicial review. The Applicant seeks:
1. A writ of certiorari issue quashing the decision of the
second respondent (“the Tribunal”) dated 05 September 2013.
2. A writ of mandamus issue requiring the Tribunal to hear and determine the matter according to law.
3. An order that the first respondent (“the Minister”) pay the applicant’s costs of and incidental to the proceeding.[2]
[2] Amended Application filed 24 July 2014, at p.2.
Background
The Applicant arrived on Christmas Island as an undocumented irregular maritime arrival on 8 June 2012. The Applicant is an
Afghani of Hazara ethnicity and Shi’a religion. On 17 September 2012, the Applicant applied for a Protection (Class XA) visa.[3] On
29 October 2012, a delegate of the First Respondent refused the application.[4]
[3] Court Book filed 15 April 2014, at pp.38- 90.
[4] Ibid, at pp.129-147.
On 30 October 2012, the Applicant applied to the Tribunal for review of the delegate’s decision.[5] On 4 February 2013, the Applicant’s representative provided the Tribunal with a written submission[6] and on 15 February 2013, the Applicant participated in a Tribunal hearing with the assistance of his representative and an interpreter. Following the hearing on 15 February 2013, the Applicant’s representative forwarded another document to the Tribunal on the current situation for Hazaras in Afghanistan.[7] On 6 September 2013, the Tribunal handed down its decision.
[5] Ibid, at pp.148-177.
[6] Ibid, at pp.203-244.
[7] Ibid, at pp.251-259.
The Applicant’s claims
The Applicant claimed that he would face a real chance of persecution in Afghanistan on the basis of his:
·Hazara race;
·Shi’a religion; and
·Status as a returned asylum seeker from the west.[8]
The Applicant claimed to fear this persecution from the Taliban and other anti-Hazara and anti-Shi’a groups. He also claimed to fear that he would be seriously physically abused, killed or subjected to a level of discrimination that would threaten his ability to subsist.[9]
[8] Outline of the Applicant’s Submissions filed 22 July 2014, p.2 at para.11.
[9] Outline of the Applicant’s Submissions filed 22 July 2014, p.2 at para.12.
The Applicant stated that, when he was very young, his family had been forced to flee their village because it was no longer safe for Hazaras to live in the area. He also stated that he had attended the Ashura Day celebrations in December 2011 in Murad Khane during which an explosion occurred that killed and injured many worshippers.
The Applicant further claimed that the 2014 withdrawal of the International Security Assistance Force and the North Atlantic Treaty Organisation from Afghanistan would lead to significant deterioration in the position of the Shi’a Hazara community there.[10]
[10] Ibid, p.3 at para.13.
The Tribunal’s decision
The Tribunal accepted that the Applicant was a Hazara and a Shi’a.
It also accepted that the Applicant’s family had relocated to Kabul when he was 11 or 12 years old and that he had lived there apart from three or four years when he lived and worked in Iran.
The Tribunal considered that, on balance, Hazaras in Afghanistan may be at risk of persecution for reason of their ethnicity and/or religion but did not accept that the Taliban or other insurgent groups were targeting Hazara Shi’a in Kabul. Further, it did not accept that the Applicant would be unable to:
·Attend the mosque;
·Pray openly;
·Attend Shi’a ceremonies; or
·Practice his religion in Kabul “now or in the reasonably foreseeable future”.[11]
The Tribunal was not satisfied that merely being physically identified as a Hazara Shi’a would lead to a real chance of serious harm in
Kabul, “now or in the reasonably foreseeable future”.[12]
[11] First Respondent’s Submissions filed 31 October 2014, p.4 at para.21.
[12] Court Book filed 15 April 2014, p.279 at para.55.
[13] First Respondent’s Submissions filed 31 October 2014, p.4 at para.23.
While the Tribunal accepted that there was some discrimination against Hazaras, it did not accept that this amounted to a systemic denial of access to services or employment. The Tribunal accepted that the Applicant and his family lived in fear of generalised violence but was not satisfied that there was a real chance that he would be
“physically abused, denied a fair wage, denied access to essential services or would be unable to access essential services if he returned to Afghanistan in the reasonably foreseeable future”[13]or that he would be “subjected to a level of discrimination as a Hazara and Shia such that he will be unable to subsist, now or in the reasonably foreseeable future”.[14]
[14] Court Book filed 15 April 2014, p.281 at para.60.
The Tribunal did not accept that the Applicant would need to travel outside of Kabul to visit his brothers or for work. The Tribunal accepted that some roads were under Taliban control, and that Hazara may be targeted for harm when traveling on the roads, however the Tribunal did not accept that the Applicant faced a real chance of persecution while travelling by road within Kabul if he returned to Afghanistan “in the reasonably foreseeable future”.[15]
[15] Ibid, p.282 at para.66.
While the Tribunal accepted that the Applicant had a legitimate fear of being harmed as a result of violent incidents which continued to take place in Kabul, it found that the violence was aimed at government, international or military targets. The Tribunal therefore concluded that the Applicant “would not face a real chance of serious harm amounting to persecution for a convention reason now or in the reasonably foreseeable future”.[16]
[16] Ibid, at para.67.
Grounds for Review
The Applicant raises one ground for review in the amended application:
The Tribunal’s decision dated 5 September 2013 is affected by jurisdictional error because the tribunal constructively failed to exercise jurisdiction/ failed to consider an integer of the applicant’s claim.[17]
[17] Amended Application filed 22 July 2014, at p.3.
The particulars of the ground are as follows:
It was an essential integer of the applicant’s claim that he feared persecution in the reasonably foreseeable future, by reason of the imminent withdrawal of international troops from Afghanistan.
In making its decision, the Tribunal failed to address and make a finding whether the withdrawal of the international forces would have any bearing on the applicant’s risk of persecution.[18]
[18] Ibid.
The Applicant also sought an extension of time within which to lodge his application. The grounds given were as follows:
1. The Applicant faced difficulty in completing application on his own due to his level of English language
2. There was delay in the application being assessed for legal assistance for his matter and was unable to afford to pay for private representation.[19]
[19] Ibid, at p.2.
The Applicant submitted an affidavit in support of his application for an extension of time.[20] The Applicant stated that he received the decision of the Tribunal on or about 13 September 2013. The affidavit outlined his difficulties in obtaining assistance including:
·His location in country Victoria;
·His lack of English language skills causing him to be reliant on friends whose English was also limited;
·The advice from his migration agent that he could not be assisted any further;
·His referral to the Asylum Seeker Resource Centre (“ASRC”) and delays by that organisation in being able to provide him with a case worker; and
·His visit to Victoria Legal Aid (“VLA”) and the advice given to him to lodge an application with the Court and their advice that there would be a waiting period before his matter could be allocated to a lawyer for merits assessment.[21]
[20] Affidavit filed 22 July 2014.
[21] Affidavit filed 22 July 2014.
The Applicant’s submissions
The Applicant took the Court to the structure of the Tribunal’s decision. Under the heading, What would happen if the applicant returned to Afghanistan? the Tribunal considered different aspects
of the Applicant’s claims under different sub-headings.[22] The first
sub-heading, The security situation begins at paragraph 28 of the decision.[23] The Applicant concedes that the Tribunal acknowledges that, in considering what might occur in the reasonably foreseeable future,
it must take into account the security situation and the impact of the forthcoming draw-down of international forces. The Tribunal notes
that none of the views on this are “entirely positive”.[24] In paragraphs
28 to 32, the Tribunal sets out various views and country information.[25] However, the Tribunal draws no conclusion as to what will happen in Kabul when the troops are withdrawn; what is absent is the weighing up of the information and any expression of preference for one view over another.
[22] Court Book filed 15 April 2014, pp.272-282 at paras.27-66.
[23] Ibid, at p.272.
[24] Ibid, p.272 at para.28.
[25] Ibid, at pp.272-273.
The Applicant submits that the Tribunal concludes in paragraph 41 of its decision that it did not accept that the Applicant would face a real chance of serious harm in Kabul for reason of his ethnicity or religion “for the reasons set out below” and then refers to the situation in Afghanistan as it was at the time the Tribunal was writing its decision.[26] This does not encompass a consideration of what will happen after the withdrawal of the troops. The same may be said of the Tribunal’s consideration of the Applicant’s claims under the other sub-headings.
[26] Ibid, at p.276.
The Applicant submits that the Tribunal was required to consider whether there was “a real chance that the applicant would be persecuted for a Convention reason were he to return to Afghanistan at the present time or within the reasonably foreseeable future”.[27]
[27] Outline of the Applicant’s Submissions filed 22 July 2014, p.6 at para.27.
The Applicant referred to the decision of a Full Bench of the
Federal Court in Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244 at paragraph 42:
To make a decision without having considered all the claims is to fail to complete the exercise of jurisdiction embarked on.
The claim or claims and its or their component integers are considerations made mandatorily relevant by the Act
for consideration in the sense discussed in Minister for Aboriginal Affairs v Peko Wallsend (1986) 162 CLR 24;
and Minister for Immigration and Multicultural Affairs v Yusuf (2001) 180 ALR 1.[28]
[28] (2001) 194 ALR 244, at p.259.
The Applicant also took the Court to Minister for Immigration and Citizenship v SZQKB (2012) 133 ALD 495 where the applicant was a citizen of Afghanistan and a Hazara Shi’a. Yates J found the submission by the Minister (in that case) that the Independent Merits Reviewer’s (“IMR”) findings could reasonably be assumed to be based on circumstances that would continue into the future to be problematic. His Honour found that, even though the IMR had alluded to the correct test when discussing the relevant legal principles, the decision did not identify that the decision-maker had engaged with the applicant’s circumstances in the reasonably foreseeable future.
In DZACT v Minister for Immigration and Citizenship [2012]
FCA 1001, Mansfield J found that the decision-maker had erred in failing to make a finding in relation to the existence of a photograph. The Court, at first instance, had found that the IMR had had regard to the photograph and that the issue of the photograph was “subsumed in findings of greater generality”.[29] Mansfield J disagreed and concluded:
However, because there was no finding by the independent reviewer about whether the photograph existed, I do not consider that the appellant’s claim to have been photographed with
Mr Bagdi, and that the photograph together with the approach to his father demonstrated that the authorities had an interest in him, was separately considered by the independent reviewer. He was entitled to have that claim considered by the independent reviewer. The failure to do so is a reviewable error: Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088, [2003] HCA 26; NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1.[30]
[29] [2012] FCA 1001, p.9 at para.23.
[30] [2012] FCA 1001, p.11 at para.30.
Similarly in this matter, the Applicant was entitled to have his claim considered in relation to the future security of Afghanistan after the withdrawal of the international troops; this was an essential component of his claim about which the Tribunal made no findings.
The Applicant took the Court to MZYQF v Minister for Immigration and Citizenship (2012) 134 ALD 277. This is a decision of
Dodds-Streeton J involving a Hazara Shi’a from Afghanistan. It was part of the applicant’s claim that the Taliban were currently in control of his home area. The IMR found that the applicant did not face a real chance of persecution in Afghanistan in his home province or anywhere else. Her Honour found that, while the IMR recognised that the applicant claimed that the Taliban were in control of his home area, she did not make a finding on whether that was the case:
… by failing to consider whether the Taliban was in control in the appellant’s home area, the IMR failed to address and deal with how his claim was put, at least in part … It is therefore a matter of speculation whether the IMR:
(a)concluded that the Taliban was not in control of the appellant’s home area and irrespective of whether it had previously persecuted the appellant there for a convention reason, there was currently no real chance of such persecution;
(b)concluded that the Taliban was in control of the home area but had not previously persecuted the appellant for a convention reason and would not do so currently;
(c)concluded that the Taliban had previously persecuted the appellant in the home area for a convention reason, and currently controlled the home area, but considered that such control was not comparable to the conditions that prevailed under the Taliban regime and therefore did not give rise to a real chance of persecution; or
(d)simply failed to consider whether the Taliban controlled the appellant’s home area, and if so, the implications of such control.[31]
[31] (2012) 134 ALD 277, pp.287-288 at para.74.
Her Honour went on to say:
Therefore, while (contrary to the appellant’s submission) the IMR recognised that he claimed fear of persecution by the Taliban and her discussion implicitly addressed that source of persecution, it did so in the context of a failure to make a finding on whether the appellant was previously persecuted by the Taliban for a convention reason or to address the associated essential integer of the appellant’s claim, namely, that the Taliban was currently in control of his home area. Contrary to the opinion of the federal magistrate, in my view, the failure to make a finding on that question was not subsumed in the “finding of greater generality as to relocation”. The appellant was thus denied procedural fairness.[32]
[32] Ibid, p.288 at para.75.
The Applicant also referred to Minister for Immigration and Ethnic Affairs v Guo& Anor (1997) 191 CLR 559 (“Guo”) at page 574 with respect to the extent to which past events can be taken to be a guide to the future.
The Applicant took the Court to two further cases:
·Wingfoot Australia Partners Pty Ltd & Anor v Kocak & Ors (2013) 303 ALR 64 (“Wingfoot”), a decision of the High Court on the issue of what is necessary to constitute adequate reasons by a Tribunal; and
·Minister for Immigration and Border Protection v MZYTS
(2013) 136 ALD 547 (“MZYTS”).The applicant in MZYTS had raised an increased risk to actual or perceived members and supporters of the Movement for Democratic Change in Zimbabwe associated with the speculation about and preparation for possible elections in 2011. In the decision by the Tribunal, nothing since 2010 was referenced. The Court found that the Tribunal had constructively failed to exercise its jurisdiction.
The Applicant in this case referred, in particular, to paragraphs 32 and 35 of the Full Court’s decision in MZYTS:
The Tribunal’s task on review under s 414 of the Migration Act is to form, for itself and on the material before it, the requisite state of satisfaction under s 65 of the Migration Act in respect of the criterion (or criteria) for a visa in issue before it. Relevantly, and almost uniformly for the Tribunal (putting complementary protection to one side), the criterion is the one set out in s 36(2)(a) of the Migration Act, which picks up Art 1 of the
Refugees Convention.[33]
[33] (2013) 136 ALD 547, p.557 at para.32.
…
The determination of whether there is an objective basis for the person’s fear is the central part of the predictive or speculative task referred to in Chan and Guo. It can only be undertaken by reference to an assessment of, and findings of fact about, the circumstances in the person’s country of nationality at the time the person is likely to be returned there.[34]
[34] Ibid, p.558 at para.35.
The Applicant further referred to paragraph 50 in MZYTS:
We do not accept the Minister’s submission. The Tribunal’s reasons disclose no process of weighing evidence and preferring some over the other. In the context of two or more pieces of apparently pertinent, but contradictory, evidence an expression of a preference for some evidence over other evidence generally requires an articulation of the different effects of the evidence concerned, and then some indication as to why preference is given.[35]
[35] Ibid, at p.562.
The Applicant drew a parallel with the current case in the failure of the Tribunal to:
·Express a preference for some evidence over other;
·Articulate the different effects of the evidence; and
·Indicate why preference was given to different evidence, country information and views.
The Applicant submitted that the error of the Tribunal lies in the lack of any finding about what would happen once the international troops had withdrawn.
The Applicant took the Court to the findings of the Tribunal at paragraph 67 of the decision:
The Tribunal has considered the applicant’s claims both individually and cumulatively. The Tribunal accepts on the evidence before it that violent incidents continue to take place in Kabul and that the applicant has a legitimate fear of being harmed as a result of that violence. However as outlined above at [50], the Tribunal finds on the evidence before it that this violence is aimed at government, international or military targets. Having carefully considered the applicant’s circumstances, the Tribunal finds that if returned to Afghanistan, the applicant would not face a real chance of serious harm amounting to persecution for a convention reason now or in the reasonably foreseeable future. Accordingly, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution.[36]
[36] Court Book filed 15 April 2014, at p.282.
The Applicant submitted that clearly this finding was central to the Tribunal’s conclusion that the Applicant did not satisfy the criteria for a protection visa. The finding is a finding in relation to the current situation in Kabul; it does not consider what will happen when the international troops are withdrawn which would presumably reduce the number of international targets in Kabul. Further, it does not consider what the effect the withdrawal of the troops would have on the
Hazara Shi’a population.
On the issue of the extension of time, the Applicant submitted that the delay was not an inordinate one and the Applicant had provided good reasons for the delay. While it accepted by the Applicant that many people in the Applicant’s position would face some extra difficulty in obtaining representation and assistance, that did not make his reasons any less valid.
The First Respondent’s submissions
The First Respondent submitted that the application is incompetent unless the Court grants an extension of time under s.477(2) of the Act. The Court has power to do this only if it “is satisfied that it is necessary in the interests of the administration of justice to make the order”.[37] Two matters are of central significance in the exercise of that discretion:
·The applicant’s explanation for the delay and the extent of the delay; and
·The nature of the substantive application and the prospects of success.[38]
[37] Migration Act 1958 (Cth), s.477(2)(b).
[38] SZQDG & Anor v Minister for Immigration and Citizenship [2011] FMCA 836, p.8 at para.23.
The First Respondent submitted that the delay in this case was substantial and that the explanation advanced for the delay did not distinguish the Applicant’s circumstances from those of the majority of other applicants for a visa seeking judicial review.[39]
[39] First Respondent’s Submissions filed 31 October 2014, p.5 at para.31.
The First Respondent then turned to the merits of the application.
The First Respondent pointed out that the conclusion of the delegate in the original decision was that the foreshadowed withdrawal of international forces was a circumstance too distant to be considered in addressing the foreseeable future. The submissions by the Applicant’s representative specifically addressed this issue. The Tribunal was clearly aware of that submission and addressed it under the broad heading What would happen if the applicant returned to Afghanistan?
The First Respondent submitted that the following six subsections should be understood as addressing and being responsive to the question and not as separate subsections; it can reasonably be inferred that they are linked.
Under the heading The security situation, the Tribunal plainly deals with the Applicant’s submission. It accepts that:
[A]ny assessment of what may occur in the reasonably foreseeable future in Afghanistan must take account of the security situation and be informed by consideration of the forthcoming 2014 “draw-down” of international forces.[40]
[40] Court Book filed 15 April 2014, p.272 at para.28.
The Tribunal sets out a number of pieces of country information which the Tribunal accepts demonstrate that the projections are not entirely positive. The First Respondent submits, however, that it can be inferred from paragraph 30 of the decision that the Tribunal is of the view that, on balance, the projections for the stability of Kabul are favourable in terms of there being sufficient security for those living in that area.[41]The First Respondent referred to the content of paragraph 30 of the Tribunal’s decision in support of that contention.
[41] Court Book filed 15 April 2014, at pp.272-273.
The First Respondent submitted that, at the end of that subsection,
the Tribunal then went on to deal with other aspects of the Applicant’s claim. The First Respondent submits that, by looking closely at the next subsection, a number of clues can be identified that indicate the Tribunal’s assessment of the security situation did not end at
paragraph 32[42] of its decision and that that assessment informed the other findings it made.
[42] Ibid, at pp.273-274.
The Tribunal considered the country information concerning the treatment of Hazara Shi’a in Afghanistan and forms the ultimate view that the Applicant would be at risk if he was returned to Afghanistan more generally but then looks at the situation in Kabul more particularly. At paragraph 47 of its decision, the Tribunal states:
As noted above, insurgents attacked a number of targets in the capital in April 2012, leading to criticism of the Afghan forces’ preparedness and capacity …[43]
[43] Ibid, at p.277.
The First Respondent submits that the words “[a]s noted above” must be a link to what the Tribunal said in paragraph 31 of the decision.
That lends support to the submission that each of the subsections should not be read in isolation but the decision should be read on the basis that each of the subsections is responsive to an assessment of the conditions for the Applicant in Afghanistan.
At paragraph 66 of the decision, the Tribunal states “having regard to the country information cited above”[44] which the First Respondent submits comprehends country information dealing with all aspects of conditions in Afghanistan, including the troop withdrawals.
The Tribunal refers to the fact that the Afghan central government remains established in Kabul, that being a point of distinction between Kabul and Afghanistan more generally. It goes on to say that it does not accept that the Taliban control the roads inside Kabul. The
First Respondent submits that everything that precedes paragraph 67 “should be considered as one analysis”;[45] it is safe for the Court to find that what is said in paragraph 67 of the decision comprehends that the reasonably foreseeable future includes the projections about the withdrawal of international troops.
[44] Ibid, at p.282.
[45] Transcript of Proceedings, 11 November 2014, p.16 at lines 6-7.
The First Respondent submitted that, while the Tribunal did not make any express findings as to what the situation in Kabul might be or might look like with the withdrawal of international troops, this was a case which very squarely fell within the type of case discussed by the Court in ApplicantWAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184 (“Applicant WAEE”).
In particular, the First Respondent drew the Court’s attention to paragraph 47 of that decision:
The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. [46]
[46] [2003] FCAFC 184, at p.16.
The First Respondent distinguished this case from the case of MZYTS where, on a reading of that decision, it was submitted that there were different circumstances in play. In that matter, apart from making vague references to the applicant’s submissions that the conditions in Zimbabwe changed significantly at election time, the Tribunal did not consider any country information that dealt with those circumstances and only looked at material which pre-dated the political cycle by at least a year.
On the First Respondent’s submission in this case, the Tribunal:
·Was clearly aware of what was being put forward; and
·Took steps to consider the country information.
The ultimate conclusion was one that was informed by an assessment of conditions as they are now and conditions, to the extent that a projection could be made, that would apply in 2014. The Tribunal was being asked to make projections about a period of time one year ahead where there was a degree of uncertainty about what the situation would be.
With respect to the decision in Wingfoot, the First Respondent submitted that it was a decision confined to a provision of the
Accident Compensation Act 1985(Vic). Section 430 of the Act is in very different terms and operates with respect to a very different statutory regime. The High Court itself says:
General observations, drawn from cases decided in other statutory contexts and from academic writing, about functions served by the provision of reasons for making administrative decisions are here of limited utility.[47]
[47] (2013) 303 ALR 64, p.76 at para.45.
Further, there is no authority for the proposition that any inaccuracy in reasons itself constitutes jurisdictional error. It might highlight some deficiency which, in turn, can create an argument about jurisdictional error, but it is not the endpoint.
Conclusions
The decision of the Tribunal in this matter is dated 5 September 2013. The Applicant says he received the decision on 13 September 2013. The application for judicial review was not lodged until
11 December 2013. It was therefore lodged outside of the 35-day time limit set by s.447(1) of the Act. The Court must therefore be satisfied that it is in necessary in the interests of the administration of justice to make an order extending the time for the application to be accepted. The Court, in addressing that issue, has applied the principles derived from the Federal Court decision in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344. The First Respondent correctly identified that, in this case, the most significant matters to be considered by the Court are the:
·Length and reasons for the delay; and
·Substantive merits of the Applicant’s case.
I am satisfied that, in this case, the delay was not significant and the Applicant suffered from some significant disability in being able to lodge his application including:
·His lack of English;
·His location in country Victoria; and
·The case loads of both the ASRC and VLA which made it difficult for both of those organisations to swiftly respond to his requests for assistance.
I turn therefore to the merits of the Applicant’s case.
The starting point for a consideration of whether the Tribunal failed to consider an integer of the Applicant’s claims, in that it failed to address and make findings on whether the withdrawal of international forces would have any bearing on the Applicant’s risk of persecution, is the Tribunal’s decision. It is not disputed that, under the sub-heading,
The security situation, the Tribunal:
·First, refers to the submission made by the Applicant’s representative on this issue;
·Second, admits that any consideration of what may occur in the reasonably foreseeable future in Afghanistan must take account of the security situation and be informed by consideration of the forthcoming 2014 ‘draw-down’ of international forces; and
·Third, refers to a number of sources of opinion on the likely outcome and the reasons given by the authors for their views on the subject.
The opinions quoted use language such as:
… a worse-case scenario of full state collapse;[48]
The Afghan regime will most probably collapse in a few years;[49]
… the possibility of the Afghan state being reduced to Kabul and areas dominated by ethnic minorities …;[50]
… Kabul is likely to remain under the control of the central government, even if the rest of the country fragments along ethnic lines;[51]
… as long as Kabul and the central government remain heavily subsidised by foreign countries … the Taliban will [not] return to a position of ascendency in Kabul, although in the long term it is impossible to say what will happen (with respect to insurgent attacks in Kabul in 2012);[52]
… insurgents should not have been able to penetrate Kabul’s defences in the first place … it shows the weakness of the Afghan security forces compared with the strength of the insurgents;[53] and
… on the ground, the international powers’ claims of success and progress “… are fooling very few”.[54]
[48] Court Book filed 15 April 2014, p.272 at para.28.
[49] Ibid.
[50] Ibid, pp.272-273 at para.30.
[51] Ibid, p.273 at para.30.
[52] Ibid.
[53] Ibid, at para.31.
[54] Ibid, p.274 at para.32.
The Tribunal makes no express finding in this part of the decision as to which view or views concerning the impact of the withdrawal of international troops on Afghanistan or Kabul the Tribunal prefers. There is no analysis of the information or any attempt to predict what, if any, impact the withdrawal is likely to have on the security situation in Kabul. This can be contrasted with the express findings made at the end of the section under the sub-heading Ethnicity and religion at paragraph 41 of the decision which refers to “the reasons set out below”[55] as the Tribunal’s reasons for not accepting that the Applicant would face a real chance of serious harm for reason of his ethnicity or religion in Kabul.
[55] Ibid, at p.276.
This sub-section is then followed by 14 paragraphs under the heading The situation in Kabul.[56] In paragraph 44 of its decision, the Tribunal refers to a UK Home Office Operational Guidance Note from 2011 which refers to “a massive security presence, intensive intelligence and measures such as the “ring of steel” around the city’s perimeter” which are said to provide additional protection not afforded the rest of the country.[57] No attempt is made to reconcile this with the material in paragraph 31 of the decision, which refers to insurgent attacks the following year and which are described in that paragraph by one analyst as “a success for the Taleban [sic] and a failure for the security forces” and by another as “a failure of intelligence” showing the weakness of the Afghan security forces compared to the strength of the insurgents who should not have been able to penetrate Kabul’s defences in the first place.[58]
[56] Court Book filed 15 April 2014, pp.276-279 at paras.42-55.
[57] Ibid, at p.277.
[58] Ibid, at p.273.
In paragraphs 45 and 46 of its decision,[59] the Tribunal recounts incidents of attacks by the Taliban in May, June and July 2013 and other attacks in June 2012 and June 2011. In paragraph 47,[60] reference is made to insurgent attacks on a number of targets in the capital in April 2012, which is probably a reference to the attacks referred to in paragraph 31,[61] and to criticisms of the capacity and preparedness of the Afghan forces by another analyst.
[59] Ibid, at p.277.
[60] Ibid, at pp.277-278.
[61] Ibid, at p.273.
In paragraph 48 of its decision,[62] the Tribunal discusses attacks during 2011 which heightened concerns about the security situation and in paragraph 49,[63] the Tribunal refers to Department of Foreign Affairs and Trade (“DFAT”) advice in 2011 that Kabul remained a comparatively secure province. That paragraph then refers to DFAT advice about the situation in July 2011 and to a DFAT 2013
Country Information Report which observes that insurgent attacks mainly target “… Government institutions and buildings, ISAF and other security force elements, and international organisations such as the International Organisation for Migration”.[64] The Tribunal concludes at paragraph 50 of its decision that, on the evidence before it, the Tribunal did not accept that “the Talban [sic] and other insurgent groups are targeting Hazara Shia in Kabul” (emphasis added).[65]
[62] Ibid, at p.278.
[63] Ibid.
[64] Court Book filed 15 April 2014, at p.278.
[65] Ibid.
The Tribunal then goes on, in paragraphs 51 and 52[66] of its decision,
to refer to the 2011 targeting of Shi’a worshippers attending
Ashura Day ceremonies in Kabul and notes that there have been
“no further incidents of this nature … although reports indicated that two suspected suicide bombers had been arrested in Kabul ahead of Ashura Day 2012, foiling plans to carry out a second attack”.[67] Without specific reference to the country information relied on, the Tribunal states that “country information does not support the claim that Shias in Kabul are targeted for reason of their religion”
(emphasis added).[68] The Tribunal concludes that it does not accept that the Applicant “will be unable to attend mosque, pray openly, attend Shia ceremonies or practice his religion in Kabul if he returns to Afghanistan now or in the reasonably foreseeable future”.[69][66] Ibid, at pp.278-279.
[67] Ibid, p.279 at para.51.
[68] Ibid, at para.52.
[69] Ibid.
At paragraph 55 of its decision, the Tribunal refers to the Applicant returning to a majority Hazara area in Kabul before concluding that “merely being physically identifiable as a Hazara Shia would not lead to a real chance of serious harm in Kabul, now or in the reasonably foreseeable future”.[70]
[70] Ibid, at p.279.
The Tribunal then deals with three other issues under the sub-headings:
·Discrimination and denial of the ability to subsist;
·Returned asylum-seeker; and
·Road travel.
The Tribunal refers to “the country information it has consulted”[71] as not indicating that discrimination against Hazaras amounted to a systemic denial of access to services or employment and to country information indicating that millions of people, including Hazaras, live in Kabul and live what, in the local context, are relatively normal lives. The Tribunal concludes that it is not satisfied, on the evidence before it, that there is a real chance that the Applicant will be:
[P]hysically abused, denied a fair wage, denied access to essential services or will be unable to access essential services if he returns to Afghanistan in the reasonably foreseeable future.[72]
[71] Ibid, p.280 at para.57.
[72] Court Book filed 15 April 2014, p.280 at para.59.
On the issue of being a returned asylum-seeker, the Tribunal deals with this issue in paragraphs 61 to 64 of its decision.[73] In paragraph 63 of its decision,[74] the Tribunal refers to particular reports including ABC News items and DFAT reports from 2009, 2010 and 2012 which indicate that returnees are not at risk of persecution and concludes, at paragraph 64,[75] that country information does not support the claim that the Applicant would be at risk of harm as a returned asylum-seeker.
[73] Ibid, at p.281.
[74] Ibid.
[75] Ibid.
At paragraphs 65 and 66 of its decision,[76] the Tribunal discusses the Applicant’s claim that road travel in Afghanistan is very dangerous: “the roads are controlled by the Taliban and if they find out you are Hazara they will kill you”.[77] The Tribunal concluded that it did not accept that the Applicant would need to travel outside of Kabul and that country information did not support his claim that the Taliban “control the roads inside Kabul”.[78] The Tribunal concluded that:
[76] Ibid, at pp.281-282.
[77] Ibid, p.281 at para.65.
[78] Ibid.
[H]
aving regard to the country information cited above, (it is not clear what specific information the Tribunal is referring to) including the May 2013 advice of Professor Monsutti
(this appears to be the advice cited in paragraph 30 that, as long as Kabul and the central government remain heavily subsidised by foreign countries, he did not believe that the Taliban will return to a position of ascendancy in Kabul, although in the long term it is impossible to say what will happen)and information about the “ring of steel” in the UK Home Office advice of
March 2011 (which appears to have failed in 2012 according to paragraph 31) together with the fact that the Afghan central government remains established in Kabul, the Tribunal does not accept that the Taliban control the roads inside Kabul.[79]
[79] Court Book filed 15 April 2014, p.282 at para.66.
The Tribunal sums up its conclusions at paragraph 67 under the heading Does the applicant have a well-founded fear of persecution if he returns to Afghanistan?:
The Tribunal has considered the applicant’s claims both individually and cumulatively. The Tribunal accepts on the evidence before it that violent incidents continue to take place in Kabul and that the applicant has a legitimate fear of being harmed as a result of that violence. However as outlined above at [50], the Tribunal finds on the evidence before it that this violence is aimed at government, international or military targets. Having carefully considered the applicant’s circumstances, the Tribunal finds that if returned to Afghanistan, the applicant would not face a real chance of serious harm amounting to persecution for a convention reason now or in the reasonably foreseeable future. Accordingly, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution.[80]
[80] Ibid.
The reference to paragraph 50 of the decision would appear to be to the evidence that the focus of Taliban and other insurgent attacks in Kabul remains on those who work for the government, foreign agencies,
the military or other prominent targets and not on ethnic Hazaras or Shi’a.
The First Respondent referred the Court to the decision of the
Full Bench of the Federal Court in Applicant WAEE and, in particular, to the oft-quoted statement that the Tribunal is an administrative body and not a Court and its reasons are not to be scrutinised “with an eye keenly attuned to error”.[81] The First Respondent also referred the Court to the first part of the next paragraph in Applicant WAEE where the Court says:
The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point.[82]
[81] [2003] FCAFC 184, p.16 at para.46.
[82] [2003] FCAFC 184, p.16 at para.47.
In MZYTS, the Full Court of the Federal Court referred to the
High Court decision in Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 (“Yusuf”) at paragraphs 10, 34 and 68 in support of the contention that:
The Court is entitled to take the reasons of the Tribunal as setting out the findings of fact the Tribunal itself considered material to its decision, and as reciting the evidence and other material which the Tribunal itself considered relevant to the findings it made.[83]
[83] (2013) 136 ALD 547, p.562 at para.49.
Judges McHugh, Gummow and Hayne in Yusuf explained the importance of obligation on the Tribunal to set out its finding as follows:
Understanding s 430 as obliging the Tribunal to set out what were its findings on the questions of fact it considered material gives the section important work to do in connection with judicial review of decisions of the Tribunal. It ensures that a person who is dissatisfied with the result at which the Tribunal has arrived can identify with certainty what reasons the Tribunal had for reaching its conclusion and what facts it considered material to that conclusion. Similarly, a court which is asked to review the decision is able to identify the Tribunal’s reasons and the findings it made in reaching that conclusion.[84]
[84] (2001) 206 CLR 323, p.346 at para.69.
The Court in MZYTS found that:
The tribunal’s reasons disclose no process of weighing evidence and preferring some over the other. In the context of two or more pieces of apparently pertinent, but contradictory, evidence an expression of a preference for some evidence over other evidence generally requires an articulation of the different effects of the evidence concerned, and then some indication as to why preference is given.[85]
[85] (2013) 136 ALD 547, p.562 at para.50.
It was an essential integer of the Applicant’s claim that the withdrawal of international troops in 2014 would have an adverse impact on the security of Hazara Shi’a in Afghanistan. This required the Tribunal to form an opinion and make findings on what was likely to occur should the Applicant return to Afghanistan not only now, but also after the withdrawal of international troops in 2014. This involved not only setting out the differing views on what was the likely effect of the withdrawal, which the Tribunal clearly did, but also some articulation of which views the Tribunal found to be persuasive and why.
In my view, the Tribunal needed to go further than considering the current situation as a basis for this analysis.
The High Court in Guo described what is required as follows:
The course of the future is not predictable, but the degree of probability that an event will occur is often, perhaps usually, assessable. Past events are not a certain guide to the future, but in many areas of life proof that events have occurred often provides a reliable basis for determining the probability - high or low - of their recurrence. The extent to which past events are a guide to the future depends on the degree of probability that they have occurred, the regularity with which and the conditions under which they have or probably have occurred and the likelihood that the introduction of new or other events may distort the cycle of regularity. In many cases, when the past has been evaluated, the probability that an event will occur may border on certainty. In other cases, the probability that an event will occur may be so low that, for practical purposes, it can be safely disregarded.
In between these extremes, there are varying degrees of probability as to whether an event will or will not occur.
But unless a person or tribunal attempts to determine what is likely to occur in the future in relation to a relevant field of inquiry, that person or tribunal has no rational basis for determining the chance of an event in that field occurring in the future(emphasis added).[86]
[86] (1997) 191 CLR 559, pp.574-575.
The First Respondent submitted that it can be inferred from paragraph 30 of the decision that the Tribunal was of the view that, on balance, the projections for the stability of Kabul are favourable in terms of the security of those living in that area. I am unable to see how that can be concluded in the context of the fact that the following two paragraphs go on to talk about events where insurgents had successfully penetrated Kabul’s defences and which concludes with the comment that “on the ground, the international powers’ claims of success and progress
“… are fooling very few””.[87][87] Court Book filed 15 April 2014, p.274 at para.32.
It does not appear to me that the Tribunal’s analysis ends at paragraph 30. However, a reader should not need to ‘look closely’ to find the ‘clues’ that the assessment did not end at paragraph 32 as suggested by the First Respondent. The Tribunal does, in paragraph 41, make the conclusion it is not satisfied that the Applicant would face a real chance of serious harm for reasons of his ethnicity or religion in Kabul.
It expressly states that its reasons for its conclusion are “set out below”,[88] presumably under the heading The situation in Kabul.
Apart from what appears to be a reference to paragraph 31, there is no direct reference in that section of the decision to the commentary under the heading The security situation or to any opinion of the Tribunal on the likely impact on Kabul of the withdrawal of international troops.
[88] Ibid, p.276 at para.41.
The Tribunal refers to the relative security of Kabul by reference to a 2011 report which pre-dated the events and analysis of those events described in paragraph 31, and to evidence which suggests that, currently, the attacks in Kabul are targeted on “… Government institutions and buildings, ISAF and other security force elements, and international organisations …”.[89] While the Tribunal concludes that the Taliban and other insurgents are not targeting Hazara Shi’a in Kabul, there is no reference to the impact of the withdrawal of foreign troops and whether or not that is likely to change the situation.
Similar conclusions are made with respect to the other integers of the Applicant’s claims. For the most part, they rely on the current situation in Kabul with the exception of the reference to the views of
Professor ALESSANDRO MONSUTTI referred to with respect to the issue of Taliban control of the roads in Kabul.
[89] Ibid, p.278 at para.49.
As the Court said in MZYTS:
The determination of whether there is an objective basis for the person’s fear is the central part of the predictive or speculative task referred to in Chan and Guo. It can only be undertaken by reference to an assessment of, and findings of fact about,
the circumstances in the person’s country of nationality at the time the person is likely to be returned there (emphasis added).[90]
[90] (2013) 136 ALD 547, p.558 at para.35.
While the Tribunal reaches conclusions about the likelihood of the Applicant suffering harm should he return to Kabul now ‘or in the reasonably foreseeable future’, I am unable to discern where in the decision the Tribunal sets out its findings with respect to the competing views put by the different commentators on the security situation in Kabul when the international forces are withdrawn in 2014. Nor am I able to discern where the Tribunal addresses why it prefers the views of any particular commentator over the views of others. Having acknowledged that the impact of the withdrawal of foreign troops was an integer of the Applicant’s claim and that any assessment of what may occur in the reasonably foreseeable future must take into account the security situation and “be informed by consideration of the forthcoming 2014 “draw-down” of international forces”[91] the Tribunal was required to make findings on that issue and provide reasons which would enable the Applicant and this Court to clearly identify what reasons it had for reaching its decision. I am satisfied that it has failed to do this.
[91] Court Book filed 15 April 2014, p.272 at para.28.
The Court cannot be satisfied that the Tribunal undertook its statutory task of determining, based on findings of fact, that the Applicant had, or did not have, a well-founded fear of being persecuted for a Convention reason should he return to his country Afghanistan,
or more particularly to the area of Kabul, now or in the reasonably foreseeable future.
For these reasons, I am of the view that the extension of time should be granted and writs ordered in accordance with the application.
I certify that the preceding seventy-seven (77) paragraphs are a true copy of the reasons for judgment of Judge Whelan
Associate:
Date: 23 January 2015
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