MZZXY v Minister for Immigration
[2014] FCCA 1908
•29 August 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MZZXY v MINISTER FOR IMMIGRATION & ANOR | [2014] FCCA 1908 |
| Catchwords: MIGRATION – Decision of the Tribunal based on credibility finding and country information – use of country information challenged by Applicant – Tribunal’s findings not illogical or unreasonable – application dismissed. |
| Legislation: Migration Act 1958 (Cth), s.36(2)(aa) |
| Attorney-General for New South Wales v Quinn (1990) 170 CLR 1 Danish Immigration Service Report, Afghanistan: Country of Origin Information for Use in the Asylum Determination Process, 25 February to Naval Post Graduate School 2011, Parwan Province, Program for Culture and Conflict Studies, 15 November |
| Applicant: | MZZXY |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | MLG 2309 of 2013 |
| Judgment of: | Judge Whelan |
| Hearing date: | 30 June 2014 |
| Date of Last Submission: | 30 June 2014 |
| Delivered at: | Melbourne |
| Delivered on: | 29 August 2014 |
REPRESENTATION
| Counsel for the Applicant: | Applicant in person |
| Counsel for the First Respondent: | Mr D Brown |
| Solicitors for the First Respondent: | Australian Government Solicitor |
ORDERS
The Application filed by the Applicant on 23 December 2013 be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 2309 of 2013
| MZZXY |
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”) of 29 November 2013
(“the application”) in which the Tribunal decided to affirm the decision of a delegate of the Minister not to grant the Applicant a protection visa.
The Applicant seeks the following orders:
1.An order that the decision of the tribunal or Minister be quashed.
2.A writ of mandamus directed to the tribunal or Minister, requiring them to determine the applicant’s application according to law.[1]
[1] Application filed 23 December 2013 at p.2.
Background
The Applicant is a Qizilbash Shia who is an Afghan citizen from Kabul. The Applicant initially left Afghanistan and went to Iran in late 2010. In September 2011 he entered Turkey illegally, where he intended to register with the United Nations High Commissioner for Refugees. He left Turkey nine months later. He arrived in Australia as an unauthorised maritime arrival on 5 August 2012 and with the assistance of a migration agent lodged an application for a Protection (Class XA) visa on 27 November 2012.
A delegate of the Minister refused to grant the Applicant a protection visa on 18 July 2013, and the Applicant sought review by the Tribunal on 24 July 2013. A Tribunal hearing was conducted on
24 October 2013, where the Applicant was represented by a migration agent and assisted by an interpreter.
The Tribunal handed down its decision on 29 November 2013 and the application for judicial review was lodged on 23 December 2013.
The Applicant’s claims
The Applicant’s claims are set out in:
·A statutory declaration of 19 November 2012;[2]
·A submission by his migration agent of 16 October 2013;[3] and in
·The evidence he gave to the Tribunal on 24 October 2013.
[2] Court Book filed 17 April 2014 at pp.84-90.
[3] Ibid at pp.149-178.
In his statutory declaration, the Applicant summarised his claims for protection, stating that he worked for an investment company in Kabul which began to receive threatening calls from the Taliban. After complaining to the authorities, who offered no assistance, the owner of the company relocated to Iran. The Applicant remained working for the company in Afghanistan, but began to receive threatening calls against himself and his family. Some people then went to the Applicant’s wife’s workplace and told her that he would be seriously harmed or killed if he continued to manage the investments, and on one occasion, men went to his home looking for him. He then made arrangements to leave Afghanistan. He feared serious harm or death should he return to Afghanistan.[4]
[4] Court Book filed 17 April 2014 at pp.84-87.
In the written submissions lodged by the Applicant’s migration agent,[5] three bases upon which the Applicant faced a real chance of persecution or a real risk of significant harm should he return to Afghanistan are identified, namely the Applicant’s:
·Shia Muslim faith;
·Qizilbash ethnicity; and
·His being imputed with an anti-Taliban and anti-militant Sunni groups political opinion on account of his association with a company making investments in Western companies.[6]
[5] Ibid at pp.149-178.
[6] Ibid at p.149.
At the Tribunal hearing, the Applicant claimed that from 2008 until 2011 he was employed by an investment company, which was linked to a Western investment company based in the USA:
The Company started receiving threatening phone calls from anonymous men who identified themselves as working on behalf of the Taliban. The men accused the Company of acting contrary to Islamic principles by investing in Western companies. The Company’s owner filed a complaint with the authorities, but as the majority of those in authority were Pashtun, they did not take the threats seriously.
The Company’s owner survived an attempted abduction by the Taliban after he screamed and shouted. He subsequently left the Company and relocated to Iran with his family.
As a result of the threats, the Company stopped investing in some Western companies and the callers were advised of this, but they did not believe it and the threats escalated. The Applicant claims that he was personally threatened, as were his family members.
On one occasion some men went to his wife’s workplace and told her that the Applicant must stop doing the Company’s work, or he would be killed or seriously harmed. On another occasion some men came to the Applicant’s home looking for him. He left Afghanistan the following day.
The Applicant also claimed that upon return to Afghanistan he fears that he will be denied access to food, shelter, employment and medical treatment on the basis of his religion.[7]
[7] First Respondent’s Contentions of Fact and Law filed 13 June 2014, pp.2-3 at paras.10-14.
The Tribunal’s decision
The Tribunal accepted that the Applicant was employed by the investment company, but:
[D]ue to highly significant concerns about the Applicant’s credibility did not accept that the Applicant was ever targeted by the Taliban on account of his employment (CB pp 218 to 219 at [42]-[43]).
The Tribunal noted that the Applicant:
16.1was unable to provide a plausible explanation for why he would continue to work at the Company after its owner had fled;
16.2gave evidence that the callers were told that the Company had discontinued investment in some Western companies, but during the Tribunal hearing seemed unable to explain which companies they were investing in;
16.3 gave vague and undetailed evidence at times ...
The Tribunal also found it implausible that the owner of the company would have escaped an attempted kidnapping by the Taliban by shouting and screaming (CB p 219 at [42]).
The Tribunal relied upon country information that indicated that persons associated with international organisations were not targeted in Kabul in rejecting the Applicant’s claim that he was targeted by the Taliban (CB p 219 at [42]).[8]
[8] Ibid, p.3 at paras.15-18.
The Tribunal rejected the Applicant’s claims about the experiences of the owner of the company and also rejected the Applicant’s claims that he was of adverse interest to the Taliban or to anyone else:
The Tribunal found there was no more than a remote chance that the Applicant would be seriously harmed by the Taliban, any insurgent group, or anyone else, on account of his past work for the Company . . . [or] on account of being a Qizilbash Shi’a …[9]
[9] First Respondent’s Contentions of Fact and Law filed 13 June 2014, p.4 at paras.20-21.
The Tribunal stated that it had not located any reports that Qizilbash in Afghanistan had been targeted by insurgent groups because of their ethnicity or religion:
The Tribunal accepted that there were some incidents where Shi’as were targeted and that religion was sometimes a contributing factor. However, it did not accept that all Shi’as in Afghanistan face a real chance of persecution in the reasonably foreseeable future … [10]
[10] Ibid at p.4 at para.22.
The Tribunal did not accept the Applicant’s claim that he would be denied access to food, shelter, employment and medical treatment on the basis of his religion:
The Tribunal further noted that the Applicant had not made any claim that he had ever previously been harmed or threatened in Kabul (other than his claimed threats from the Taliban which the Tribunal had rejected) . . . the Tribunal found that it was no more than speculative that the Applicant, given his individual circumstances, would face a real chance of persecution in the reasonably foreseeable future (CB p 221 at [49]).[11]
[11] Ibid, pp.4-5 at para.25.
The Tribunal also found that the Applicant did not face a real chance of persecution by the Taliban and or any other Sunni group on account of his race or religion. It further found that there was no substantial ground for believing that as a necessary and foreseeable consequence of the Applicant being removed from Australia to Afghanistan there was a real risk that he would suffer significant harm in his home area in Kabul.
Grounds for the application
The Applicant nominated two grounds in his application for review:
1.I was denied procedural fairness because the Tribunal did not properly consider my claims.
2.The Tribunal failed to take into account relevant material regarding my claims.[12]
[12] Application filed 23 December 2013 at p.3.
Application for adjournment
At the beginning of the hearing, the Applicant made a request for the matter to be adjourned. The Applicant claimed that he had been unable to properly prepare himself for the hearing. He produced a medical letter from Primary Mental Health Partners signed by a
MS JUDITH EMOND(“Ms Emond”), a counsellor with that organisation. The letter indicated that the Applicant had been attending counselling sessions with Ms Emond and that she had noticed “a decline in his mental state over the past few months”.[13] The letter also indicated that the writer had grave concerns as to the Applicant’s mental state. The letter did not indicate that the Applicant was unable to participate in the Court hearing.
[13] Medical letter dated 23 June 2014, signed by Judith Edmond, Primary Mental Health Partners.
The Applicant also made submissions concerning his attempts to obtain legal representation in the proceedings.
The First Respondent indicated that there was some sort of a request made to the Australian Government Solicitor (“the AGS”) for an adjournment of the proceedings but that the First Respondent had not acceded to that request.
After hearing from the Applicant and the First Respondent, the Court determined not to grant an adjournment of the proceedings. It did so for two reasons:
·First, the application was lodged on 23 December 2013 and the Applicant had been on notice since 19 March 2014 that the matter was listed for hearing on 30 June 2014. [14] The Court was of the view that that provided the Applicant with sufficient time to prepare himself for the hearing.
·Second, the Applicant produced a written submission to the Court with which it was clear he had obtained some assistance and which the Court was prepared to consider as part of his case.
For those reasons, the Court determined to proceed to deal with the matter on the basis of the material before it.
[14] Orders of Registrar Caporale made 19 March 2014.
The Applicant’s submissions
The written submissions produced to the Court can be summarised as follows:
The Applicant submits that he was not accorded procedural fairness in that the Tribunal “acted in a way which is irrational and/or unreasonable”[15] due to the use of independent country information associated with its findings concerning Western companies and the Qizilbash and also in its consideration of the complementary protection criteria.
[15] Transcript of proceedings of 30 June 2014, p.3 at line 25.
On the issue of the Applicant’s association with western companies, the Tribunal relied on country information which was “taken out of its original context and does not accurately convey the information contained in the original publication”. The Tribunal “has only used a single source which is an opinion from the Danish Refugee Council”. [16]
[16] Ibid, p.3 at lines 35-36 and 38-39.
The Applicant submits that when the report by the Danish Immigration Service (“the Report”)[17] is read in full it:
[G]ive[s] a very different picture to that asserted by the [Tribunal] member, and the majority of the sources cited in the report actually supports the opposite view in that people in Afghanistan who are perceived to be involved with the western companies are at risk of serious harm.[18]
[17] Danish Immigration Service Report, Afghanistan: Country of Origin Information for Use in the Asylum Determination Process, 25 February to 4 March 2012.
[18] Ibid, p.4 at lines 1-4.
The only sources in the Report which support the contention that persons involved with Western companies are not at risk, are from a “named international NGO and unnamed independent policy research organisation. Board [sic] of this [sic] organisations give highly qualified responses to the questions regarding risk of harm in Afghanistan.[19] As the Tribunal has taken only one opinion from the report against the weight of other evidence, the Applicant submits that the “use of independent country information regarding association with western companies is unreasonable and irrational and has denied the applicant procedural fairness”.[20]
[19] Ibid at lines 28-31.
[20] Transcript of proceedings of 30 June 2014, p.4 at lines 43-45.
With respect to the country information relied upon by the Tribunal concerning the Qizilbash, the Applicant submits that the Tribunal used an evangelical Christian website to obtain an understanding of the Applicant’s religious beliefs and the position of the Qizilbash:
Although one of the other sources cited, the Naval Post Graduate School clearly states on their webpage, “The Qizilbash are an Imami Shia group thought to be descended from Persian “mercenaries and administrators left behind by the Safavid Emperor Nadir Shah Afshar to govern the Afghan provinces” . . . Their Shia faith, combined with their disproportionate political influence often resulted in resentment by large portions of the Sunni majority within Afghanistan.[21]
[21] Ibid, p.5 at lines 14-18 and 21-23.
The Applicant submits that it is clear that there was evidence available to the Tribunal member of the targeting of Qizilbash:
The targeting referred to includes resentment by [sic] large portion of the Suni majority and being further alienated from the Pashtun majority. It is submitted that the member has not used the evidence in front of him and has therefore demonstrated . . . illogicality and all unreasonableness in consideration of the applicant’s claims.[22]
[22] Ibid, lines 29-34.
The Applicant further submitted that the Tribunal had not made an assessment of the complementary protection criteria and therefore has not assessed the Applicant’s claims according to law.
In oral submissions, the Applicant also stated that he was denied procedural fairness because:
·He did not have an interpreter for the full session;
·The interpreter left; and
·The Applicant did not understand fully what was said by the Tribunal.[23]
[23] Transcript of proceedings of 30 June 2014, p.9 at lines 33-34.
The other submissions made by the Applicant, essentially, went to the finding of fact made by the Tribunal concerning the issues of why his employer had fled Afghanistan and the threats made against him.
The First Respondent’s submissions
With respect to the issue of the interpreter, the First Respondent submitted that there was no transcript of the hearing provided by the Applicant. However, the Court Book indicates in the hearing record that:
·The interpreter arrived at 9:28 a.m.;
·The hearing commenced at 9:52 a.m.;
·The interpreter left at 12:30 p.m.; and
·The hearing closed at 12:33 p.m.[24]
[24] Court Book filed 17 April 2014 at pp.197-198.
With respect to the Tribunal’s findings, the First Respondent submitted that the Tribunal made its decision based essentially on two matters:
·A credibility finding with respect to the evidence given by the Applicant; and
·A finding in relation to country information.
The Tribunal’s core finding was that the Applicant was not a credible witness. In paragraph 42 of its decision,[25] the Tribunal sets out its reasons for this view, namely that:
·The Applicant was not able to give a plausible or credible explanation as to why he would continue working alone at the company after the owner had fled to Iran;
·The Applicant had given evidence that he informed the Taliban that his investment company had withdrawn support from certain Western companies, but he was unable, to the Tribunal’s satisfaction, to explain which companies were invested in; and
·The Applicant’s evidence was vague and undetailed. He was asked, on a number of occasions, to estimate the number of threatening phone calls he claimed to have received and he was unable to go beyond saying there were many.[26]
[25] Ibid at pp.218-219.
[26] Court Book filed 17 April 2014 at pp.218-219
On the credibility issue, “the tribunal did not accept the applicant’s claims that he had been threatened arising from the work he did, or that that had occasioned threats to his family and to himself”.[27]
[27] Transcript of proceedings of 30 June 2014, p.12 at lines 35-37.
In considering the broader claims in relation to Qizilbash ethnicity and Shia religion:
[T]he tribunal relied upon country information in concluding that the Kizilbash were not subject to particular threats arising from their ethnicity, and that … although there were occasions in Kabul when people of the Shia faith had suffered attacks, these … were sufficiently rare as not to amount to more than a remote threat to the applicant.[28]
[28] Ibid at lines 38-42.
At paragraph [50] of the decision record,[29] the Tribunal did make a finding in relation to complementary protection that, in considering the evidence, overall, there were:
[N]ot 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 in his home area of Kabul.
[29] Court Book filed 17 April 2014 at p.222.
The Tribunal also made a cumulative finding in relation to complementary protection at paragraph [52] of the decision record.[30]
[30] Ibid.
The Tribunal made a rather lengthy précis of the document referred to by the Applicant as the Danish Immigration Service report.[31] The Report stated that, while there were reports of insurgent groups targeting civilians who are seen to be supporting the government and international community organisations, NGOs and Western companies and the Afghan government, these incidents occur more commonly outside Kabul, and, this is the point that Tribunal relied upon. The report further stated that although there had been some very few cases of abduction, the explanation for these cases could have been about the people’s income and status rather than who they worked for. Furthermore, NGO employees were not threatened, at least not those working in Kabul.[32] The First Respondent submits that the weight that is placed by the Tribunal on country information is a matter for the Tribunal, and that this is supported by the case of NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 (“NAHI”).
[31] Danish Immigration Service Report, Afghanistan: Country of Origin Information for Use in the Asylum Determination Process, 25 February to 4 March 2012.
[32] Court Book filed 17 April 2014 at p.219.
At paragraph [35] of its decision, the Tribunal quotes from the Danish Immigration Service Report of 2012, which states:
Regarding security in Kabul, an international NGO informed the delegation that Kabul is one of the few places in Afghanistan where the security situation is relatively good and stable even though incidents are occurring also in Kabul.[33]
[33] Ibid at p.213.
The First Respondent submitted that:
[I]t was a matter for the tribunal to review the country information and place the weight that it thought appropriate on that country information available to it ... Those country information based findings in relation to the generic claims as to threats experienced by persons of the applicant’s ethnicity and religious faith were open to the tribunal and when read in conjunction with the credibility findings in relation to the applicant’s specific claims about the investment company effectively dealt with the claims made on behalf of the applicant.[34]
[34] Transcript of proceedings of 30 June, p.14 at lines 5-16.
Conclusions
In written submissions, the Applicant contended that the denial of procedural fairness by the Tribunal consisted of its irrational or unreasonable use of country information. As stated in NAHI, both the choice of country information and the weight given to country information are matters for the Tribunal.[35] In SZOZF v Minister for Immigration [2011] FMCA 364, the Court by reference to the decision of the High Court in Minister for Immigration and Citizenship v SZMDS (2010) 266 ALR 367, noted:
[A]s Crennan and Bell JJ in SZMDS make clear, not every lapse in logic will give rise to jurisdictional error. Rather, “illogicality” or “irrationality” sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s.65, is one at which no rational or logical decision maker could arrive on the same evidence.[36]
[35] [2004] FCAFC 10 at 13.
[36] [2011] FMCA 364, p.11 at para.31.
The test for ‘unreasonableness’ is in a similar vein. In
Attorney-General for New South Wales v Quinn(1990) 170 CLR 1, the High Court explained the requirement as follows:
Properly applied, Wednesbury unreasonableness leaves the merits of a decision or action unaffected unless the decision or action is such as to amount to an abuse of power: Nottinghamshire County Council v. Secretary of State for the Environment (1). Acting on the implied intention of the legislature that a power be exercised reasonably, the court holds invalid a purported exercise of the power which is so unreasonable that no reasonable repository of the power could have taken the impugned decision or action. The limitation is extremely confined.[37]
[37] (1990) 170 CLR 1 at p.36.
The first criticism of the Tribunal is its selective use of material from the Report. The Tribunal quoted one passage from that report which was a statement to the Danish Immigration Service Mission by the Danish Refugee Council.[38] The relevant section of the Report is headed “Association or employment with International organizations, NGOs, Western Companies and the Afghan government”. The section of the report contains little material with respect specifically to association with western companies. Apart from the passage quoted by the Tribunal, the following quotes refer to people working for western companies, amongst others:
[38] Court Book filed 17 April 2014, p.210 at para.28 of the Tribunal’s decision quoting from p.22 of the Danish Immigration Service Report, Afghanistan: Country of Origin Information for Use in the Asylum Determination Process, 25 February to 4 March 2012.
To what extent persons working for international organizations and Western companies are at risk of being targeted by the Taliban or other insurgent groups depends, according to an independent policy research organization in Kabul, on the organization in question.
. . .
According to AAWU, the threats posed to employees in international organizations, Western companies, and the Afghan government may end in violence, including killing, kidnapping, or throwing acid on people.[39] (I note that as the All Afghan Women Union (“the AAWU”) is a women’s organisation, this appears to relate specifically to women).
[39] Danish Immigration Service, Afghanistan: Country of Origin Information for Use in the Asylum Determination Process, 25 February to 4 March 2012, p.21.
The comments of the Cooperation for Peace and Unity (“the CPAU”), which relate to persons working for American organisations, appear to be confined to those who “are not allowed to move around in
non-armoured vehicles”[40] and, in particular, who work in the countryside.[40] Ibid.
The Applicant’s claim was that he worked for an investment company which had links to a Western investment company based in the USA. He claimed that the company invested in some Western companies but was unable to name any of them. The material contained in the report, taken as a whole, would appear to identify employees of Western companies and employees of companies with known contracts with foreign forces or organisations. The Applicant’s situation hardly seems to fit that profile. The Tribunal may well have wondered how the Taliban knew so much about the company he worked for and who they did business with when the Applicant himself appeared to have little knowledge of its dealing with Western companies.
I fail to see how the Tribunal was unreasonable or irrational in its use of country information concerning the likelihood of the Applicant being targeted by the Taliban in Kabul as an employee of a company with some financial links to Western companies.
With respect to the issue of information concerning the ‘targeting of the Qizilbash by insurgent groups because of their ethnicity or religion’, the Applicant refers to the Naval Post Graduate School 2011, Program for Culture and Conflict Studies “Parwan Province” on their website,[41] a document referred to in footnotes of the Tribunal decision. In a paragraph concerning the Qizilbash in that province, the document includes the following sentence, “Their Shia faith, combined with their disproportionate political influence often resulted in resentment by large portions of the Sunni majority within Afghanistan”.[42]
[41] Naval Post Graduate School 2011, Parwan Province, Program for Culture and Conflict Studies, 15 November Ibid.
The passage goes on to say that “due to the persecution, religious and political”[43] the Qizilbash often publicly portrayed themselves as Sunnis or Pashtuns. The website contains no information about current targeting of Qizilbash by insurgent groups. It does not suggest that the Tribunal ignored evidence of such in its assessment of the risk faced by the Applicant as a Qizilbash.
[43] Ibid.
The other matter raised by the Applicant was a failure of the Tribunal to assess the Applicant’s claims against the complementary protection criteria. The Tribunal deals with this at paragraphs 50, 52 and 54 of its decision.[44] It is not necessary for the Tribunal to reiterate findings made with respect to the refugee criteria in considering whether s.36(2)(aa) of the Migration Act 1958 (Cth) (“the Act”) has application to the circumstances of the case. Provided it applies the criteria to those findings it cannot be said to have failed to assess the Applicant’s claims.
[44] Court Book filed 17 April 2014 at p.222.
I am therefore not satisfied that the Applicant was denied procedural fairness by the Tribunal or that the Tribunal made some other jurisdictional error in its assessment of the Applicant’s claims. For these reasons the application is dismissed.
I certify that the preceding forty-nine (49) paragraphs are a true copy of the reasons for judgment of Judge Whelan
Associate:
Date: 29 August 2014
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