Razai v Minister for Immigration & Citizenship & Anor
[2011] FMCA 777
•27 October 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| RAZAI v MINISTER FOR IMMIGRATION & ANOR | [2011] FMCA 777 |
| MIGRATION – Review of decision of an Independent Merits Reviewer – whether the applicant was afforded procedural fairness – consideration of the meaning of “may” in relation to state protection – whether the Tribunal applied the wrong test – Tribunal was not required to address state protection – no jurisdictional error – application dismissed. |
| Migration Act 1958 (Cth), ss.424A, 476 |
| Plaintiff M61/2010E v Commonwealth of Australia; Plaintiff M69 of 2010 v Commonwealth of Australia [2010] HCA 41; (2010) 272 ALR 14 Mark Aronson, Bruce Dyer, Matthew Groves, Judicial Review of Administrative Action – Fourth Edition, Lawbook Co., Thomson Reuters, Sydney, 2009 |
| Applicant: | MEHDI AGHA RAZAI |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | CHRISTOPHER PACKER IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER |
| File Number: | SYG 578 of 2011 |
| Judgment of: | Nicholls FM |
| Hearing date: | 5 August 2011 |
| Date of Last Submission: | 5 August 2011 |
| Delivered at: | Sydney |
| Delivered on: | 27 October 2011 |
REPRESENTATION
| Counsel for the Applicant: | Mr A K Flecknoe-Brown |
| Solicitors for the Applicant: | Mallesons Stephen Jaques |
| Appearing for the Respondents: | Mr A Markus |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application made on 30 March 2011, and amended on 7 June 2011, is dismissed.
The applicant pay the first respondent’s costs set in the amount of $4,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 578 of 2011
| MEHDI AGHA RAZAI |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| CHRISTOPHER PACKER IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER |
Second Respondent
REASONS FOR JUDGMENT
This is an application made on 30 March 2011 under s.476 of the Migration Act 1958 (Cth) (“the Act”) seeking review of the recommendation made on 15 February 2011 by an Independent Protection Assessment Reviewer (“the reviewer”) to the Minister for Immigration and Citizenship, and notified to the applicant on 24 February 2011, that Mr Razai not be recognised as a person to whom Australia has protection obligations pursuant to the United Nations Refugee Convention.[1]
[1] Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954) as amended by the Protocol Relating to the Status of Refugees, opened for signature 31 January 1961, 606 UNTS 267 (entered into force 4 October 1967).
The applicant seeks, amongst other matters, injunctive relief, and thereby invokes the jurisdiction of this Court (Plaintiff M61/2010E v Commonwealth of Australia; Plaintiff M69 of 2010 v Commonwealth of Australia [2010] HCA 41; (2010) 272 ALR 14).
When this case first came on for directions, Mr S Blount of counsel appeared for Mr Razai. He also subsequently appeared at directions before another Federal Magistrate in the matter of SZQDS v Minister for Immigration & Citizenship & Anor [2011] FMCA 776 (“SZQDS”). Orders were made at that time to transfer SZQDS to my docket, to be heard concurrently with Mr Razai’s case. The basis for the transfer was that the legal issues in both cases were the same. However at the hearing Mr A K Flecknoe-Brown of counsel appeared for Mr Razai. Mr Blount appeared for SZQDS. Given that there were some common elements between the two sets of amended applications (Grounds 1 to 5), Mr Blount made submissions on those legal issues, relevant to both cases, which were said to be the same (although the facts varied “slightly” they were said to be “substantially identical” – with reference in particular to the written submissions). Mr A Markus appeared for the first respondent in both matters.
The Amended Application
The applicant was granted leave to file an amended application. It is in the following terms:
“1. The second respondent’s recommendation was not made in accordance with law because the second respondent fundamentally misunderstood the correct test to be applied under the Refugees Convention and the Migration Act 1958 (Cth) (“the Act”).
Particulars
The second respondent found the applicant did not have a well founded fear of persecution, because the applicant could avail himself of the protection of a non-state actor, the Hizb-I Wahdat Khalili/Nasr faction controlling the Jaghori district of Afghanistan.
2. The second respondent’s recommendation was not made in accordance with law because the second respondent failed to take a relevant consideration into account.
Particulars
In finding the applicant did not have a well founded fear of persecution because the applicant could avail himself of the protection of the Hizb-I Wahdat Khalili/Nasr faction controlling the Jaghori district of Afghanistan, the second respondent failed to take into account the insufficient protection offered by the Afghan state.
3. The second respondent’s recommendation was not made in accordance with law because the second respondent took an irrelevant consideration into account.
Particulars
In finding the applicant did not have a well founded fear of persecution, the second respondent took the irrelevant consideration into account that the applicant could avail himself of the protection of the Hizb-I Wahdat Khalili/Nasr faction controlling the Jaghori district of Afghanistan.
4. The second respondent’s recommendation was not made in accordance with law because there was no evidence to support the second respondent’s critical finding that the applicant would be afforded adequate protection in the Jaghori region.
Particulars
The applicant refers to and repeats the matters referred to in the particulars to Ground 2 above.
5. The second respondent’s recommendation was not made in accordance with law because the second respondent fundamentally misunderstood the correct test to be applied under the Refugees Convention and the Act.
Particulars
In assessing the reasonableness of requiring the applicant to live in the Jaghori region of Afghanistan, the second respondent failed to consider:
a) whether the applicant’s freedom of movement would be significantly curtailed;
b) whether the internal safety of the applicant would be illusory or unpredictable;
c) the quality of protection offered by the Hizb-I Wahdat Khalili/Nasr faction; and
d) whether conditions were attached to any protection offered by the Hizb-I Wahdat Khalili/Nasr faction.
6. The second respondent’s recommendation was not made in accordance with law because the second respondent denied the applicant procedural fairness.
Particulars
The second respondent relied on particular assumptions to conclude that the applicant did not have a well founded fear of persecution:
a) That Jaghori and Malistan districts both remain out of Taliban control due to the military and political power of Hizb-I Wahdat Khalili/Nasr faction; and
b) That protection afforded by the Hizb-I Wahdat Khalili/Nasr faction is strong across the Hazarajat including the Jaghori district.
The specific assumptions as to the military and political ability of the Hizb-I Wahdat Khalili/Nasr faction to protect Hazaras in the Jaghori district were never put to the applicant, denying him the opportunity to call evidence or make submissions on the point.
7. The second respondent’s recommendation was not made in accordance with law because the second respondent denied the applicant procedural fairness.
Particulars
The second respondent took into account country information which was not put to the applicant for his consideration or comment.”
[Ground 3 was not pressed.]
For the sake of clarity I note that Mr Blount made submissions on grounds 1, 2, 4 and 5 to apply to both SZQDS and the current matter. Mr Flecknoe-Brown made submissions on grounds 6 and 7, with references also to the facts of this case as they applied to the other grounds.
The Evidence
The relevant evidence before the Court in this matter is:
1)The Court Book (“CB”), Volumes 1 and 2.
2)The affidavit of Jane Emma Taylor, solicitor, affirmed on 17 June 2011, annexing a transcript of the interview between the reviewer and Mr Razai.
3)The affidavit of Jeremy Liam Burgess, solicitor, affirmed on 17 June 2011, relating to the provenance of the transcript.
4)The affidavit of Meredith Anne Simons, law graduate, affirmed on 17 June 2011, annexing a transcript of an interview between Mr Razai and an officer in the Department of Immigration (which preceded the interview with the reviewer).
The Claims to Protection
Mr Razai is an Afghani national of Hazara ethnicity and of Shia Muslim religion. He comes from or near the Jaghori district (see generally CB 103, CB 181 to CB 182). Mr Razai sought to call on Australia’s protection by claiming to fear persecutory harm in Afghanistan from the Taliban.
The basis for this fear appears to have been for three reasons:
·The Taliban’s targeting of the applicant’s father because he was a teacher, which led to the family’s move to Pakistan in 1996;
·The applicant’s Hazara ethnicity; and
·The applicant’s Shia faith.
The applicant’s claims to protection were initially assessed by an officer in the Minister’s department who found that the applicant did not meet the UN Convention definition of a “refugee” (CB 85). The basis for this was that, after considering the applicant’s claims in light of country information available to him, the assessor found that the applicant could safely return to his former place of residence in the district of Jaghori in Ghazni province in Afghanistan. This was the place of his former residence from which he departed in 1996.
The applicant sought review of this assessment by an independent merits reviewer (CB 86). It is this assessment and recommendation which is the subject of these proceedings.
State Protection: The Issue
Mr Flecknoe-Brown’s submission was that, just as in SZQDS, the “point” (the question of state protection) was squarely before the reviewer, as was the matter of “factional protection”. This latter issue, however, was said to be either irrelevant or “contrary to the protection that is necessary”.
Mr Razai relies on the grounds and arguments in support advanced by counsel in SZQDS. For the reasons set out in that judgment, and to the extent that the applicant relies on the submission in that case, grounds 1, 2, 4 and 5 of this application are not made out. Given the reliance on SZQDS, I have adopted the “common” parts of the consideration in SZQDS for the purposes of consideration of Mr Razai’s application.
Grounds 1, 2, 4 and 5 of the amended application raise, and are derived from, the question of whether, in circumstances where the fear of harm emanates from a third party non-state actor or agents of persecution (in this case particularly the Taliban), the reviewer was in error in not considering the adequacy of state protection in finding that the applicant could avail himself of the protection of a third-party,
non-state actor (in this case certain Hazara ethnic factions predominant in the applicant’s home district).
The background to this is that the applicant is an Afghani national of Hazara ethnicity and a Shia Muslim, who lived for some years in Pakistan before coming to Australia. The applicant’s claims were that his family had suffered harm in the past as a result of ethnicity and religion, which necessitated his family’s move to Pakistan about 10 years ago. The applicant claimed to fear serious harm if he were to return to Afghanistan (the reviewer accepted he had no right of return to Pakistan – [89] at CB 180) from the Taliban. Although, as Mr Flecknoe-Brown submitted, the reviewer also made findings in relation to Pashtuns and Sunni Muslims.
The attack on the reviewer’s reasons, whether framed as a misconception of the test to be applied (ground 1), the failure to take into account a relevant consideration (ground 2), there being no probative basis to support the reviewer’s finding (ground 4), or a failure to properly assess the adequacy of the protection offered (ground 5), all emanate from the proposition that the reviewer gave no consideration as to whether the Afghani state was able to offer effective internal protection, but rather simply relied on the fact of the applicant’s Hazara ethnicity, his likely return to an area dominated by people of Hazara ethnicity, and that non-state actors (Hazara factions) would protect the applicant from the Taliban (another non-state actor).
The import, in particular, of ground 2, which is the centrepiece of the applicant’s attack, is that the complaint focuses on the reviewer’s alleged failure to consider the adequacy of state protection in these circumstances in considering whether the applicant had a well-founded fear of persecution.
The Grounds
In relation to the attack emanating from grounds 1, 2, 4 and 5, that is the state protection question, the applicant referred to the following material:
1)The applicant is an Afghan of Hazara ethnicity (CB 37).
2)He was born in Mamdak village, district of Jaghori in Ghazni province (CB 37).
3)He left Afghanistan at age 7 (in 1996) with his family after his father, a teacher, received threats from the Taliban (CB 37).
4)The applicant’s representative made submissions at the interview that there was the threat of harm from the Taliban because of his father’s activities as a teacher and “… because of the Hazara developing…” (transcript of Interview, page 15.3 – the annexure to the affidavit of Jane Emma Taylor).
5)In a written statement dated 5 November 2010, the applicant said:
“… I do not believe the Afghan Government can effectively protect me in either Jaghori or Kabul…” (CB 93.5).
6)The applicant’s representatives made submissions, dated 12 November 2010, that the Afghan government was not in a position to protect its citizens from the growing power of the Taliban (CB 95.3 to CB 95.4 – see also at CB 97 and CB 116).
7)The applicant’s representatives made written submissions that included:
“… the applicant would not be able to obtain adequate state protection from the Afghan government and security forces anywhere in Afghanistan” (CB 116.8).
8)In a response to what is described as the reviewer’s “natural justice” letter of 17 January 2011 (CB 138 to CB 147, with attachments), the applicant’s adviser stated:
“… The Taliban continue to target Hazaras, and in most parts of the country, the Government cannot offer any effective protection…” (CB 149.10).
9)The reviewer acknowledged this submission in his decision record ([17] at CB 165).
10)On the issue of the relevance of protection from the Hazara factions, a report from “Human Rights Watch” (Afghanistan, January 2010 – fn. 46 at CB 118) said:
“In many areas of the country local strongmen and former warlords continue to exert significant power over communities, using intimidation and violence to maintain their control…”.
11)In the attachment to the “natural justice letter”, amongst other country information, was a reference to a “Centre for the Cooperation for Peace and Unity” report (“CPAU”), which in part said:
“The CPAU report also indicates Jaghori and Malistan districts both remain out of the reach of Taliban control due to the military and political power of Hizb-i Wahdat Khalili/Nasr faction which seems to be robust across the Hazarajat. Consequently, to date there are no reported clashes between the Taliban and Hizb-i Wahdat Khalili/Nasr as the Taliban has not yet taken steps to challenge groups in control of the Hazarajat region. Despite pervasive Taliban influence in Ghazni, the Taliban remain at the outskirts of Jaghori and Malistan districts.”
12)Also in the attachment was a 2010 DFAT Report “AFG10736: The Hazara”, which in part said (at CB 142):
“… There is a lack of effective protection from the state in Ghazni, but Hazara strongmen control most of the Hazara districts. Interlocutors described the possibility of wholesale violence against the Hazara community in Ghazni as unlikely, given commanders’ strength and the flexibility of their relationships with other factional and insurgency networks – including the Taliban.”
13)At the hearing the reviewer made reference to:
“… I’ll go through some more country information later. However, particular reports do suggest as I have said that the Taliban aren’t, don’t have control in Jaghori.” (Annexure to the affidavit of Jane Emma Taylor at T8.)
14)I note also, from the same page, the reviewer said:
“[Reviewer] Right, so that doesn’t, the country information I have suggests that Jaghori is almost a 100% Hazara dominated area. And that the Taliban don’t have that degree of influence in Jaghori and indeed, that is because of some Hazara parties which are quite powerful in Jaghori, and have been successful in keeping the Taliban out. And, I’m just trying to find the exact name as the – from memory – the Hizb-i Wahlid Khalili/Nasr faction – perhaps I’ll get there. Alright, there we are – the Hizb-i Wahdat Khalili/Nasr party. Alright, so and that’s…
[Representative] Is there a date of that news?
[Reviewer] That is from the CPAU Report. Cooperation for Peace and Unity 2009 report on Jaghori and Malistan Districts…”.
15)The reviewer referred in his decision record to (at [106] at CB 183):
“• Additionally, Jaghori and Malistan districts both remain out of the reach of Taliban control due to the military and political power of Hizb-i Wahdat Khalili/Nasr faction which seems to be robust across the Hazarajat…”.
I should just note, although not referred to in the applicant’s submissions, that the reviewer in his decision record did acknowledge that the applicant had raised the issue of state protection ([91] at CB 180):
“Submissions argue the claimant would suffer persecution in Afghanistan for reasons of his Hazara ethnicity; Shia religion; imputed political opinion (of opposition to the Taliban as he is Hazara Shia and imputed to be in favour of the West, the coalition forces and/or the Afghan government and/or in opposition to the Taliban and/or other anti-government elements on account of his presence in Australia); and membership of a particular social group namely: ‘young Hazara males’, and ‘Afghans who have returned to Afghanistan after living abroad’. He would be denied State protection, and as systematic discrimination against Hazaras and Shias is tolerated and sanctioned by the State, this amounts to persecution for a Convention reason. Also, he is related by blood to his deceased uncle Baqir Agha Razai, an
anti-Taliban activist.”
Despite the applicant’s submission that on the question of state protection his case sits squarely with that of SZQDS, there are some important differences. For example in the current case, in relation to some important factual assertions made by the applicant, the reviewer emphatically found that the applicant was not a satisfactory or credible witness. The reviewer rejected the applicant’s “story in its entirety” as it related to “subsequent claims” concerning his brother’s disappearance ([116] to [122] in particular at CB 186).
As the applicant relied on submissions made by Mr Blount in relation to grounds 1, 2, 4 and 5 in SZQDS to the effect that the reviewer did not consider the question of state protection as he was required to do, it is important to note that the reviewer did understand that the applicant had stated that he “… would be denied State protection… as systematic discrimination against Hazaras and Shias is tolerated and sanctioned by the State…” ([91] at CB 180).
The reviewer accepted that the applicant was an Hazara, and of Shia faith. The applicant’s attack is that, notwithstanding country information and submissions to the effect that Hazaras were at risk in Afghanistan, the reviewer proceeded to find that there was not a
well-founded fear of persecution if the applicant were to return to Afghanistan as the applicant could return and live safely in his home area which was an Hazara dominated and controlled area.
The submission proceeds that the actual reasoning of the reviewer is, not surprisingly, said to be one critical element to understanding and resolving the dispute now before the Court. This reasoning was to find that the applicant was an Afghani of Hazara ethnicity and a Shia Muslim, but that this ethnicity and religion on their own did not mean that the applicant faced a real chance of serious harm amounting to persecution.
The reviewer had regard to country information that the applicant’s home village was in Jaghori, a region described as “almost 100% Hazara region” ([105] at CB 183), and country information (DFAT and CPAU reports) that “indicate that Hazara districts are secure” ([106] at CB 183).
Ultimately, the reviewer reasoned (at [111] at CB 184):
“Although in Ghazni province, the claimant’s home area is in a Hazara community and very close to the Jaghori regional centre of Sang-e-Masha. Whilst there is generalized violence elsewhere in the province, it is the case that the claimant would be conducting his life in Jaghori district, a Hazara-dominated region that is his place of origin and where he can reasonably seek access to traditional family and/or community structures. Country information shows that Jaghori district is a secure area where markets, health care and particularly schools continue to function. Additionally, one conclusion of the UNHCR report (in ‘Internal flight or relocation alternative’) is that the traditional family and community structures of Afghan society continue to constitute the main protection and coping mechanism particularly in rural areas where infrastructure is not as developed. I conclude there is not a situation of generalized violence in Hazara-dominated districts in Ghazni province which prevents the claimant from residing there. I conclude there is not a real chance that the claimant will face serious harm in the reasonably foreseeable future in his home area.”
[Footnote omitted.]
Also, the reviewer found relevant to this sequence of reasoning, again based of DFAT advice, that there were “secure routes” between Kabul and Ghazni and then to Jaghori. This finding of fact, and the finding that the Hazara factions are “strong” in the relevant areas of Afghanistan, led the reviewer to conclude that there was not a real chance that the applicant would face serious harm in the reasonably foreseeable future travelling to the Dahmarda area ([109] at CB 184).
The applicant relies on Minister for Immigration and Multicultural Affairs v Respondents S152/2003 [2004] HCA 18; (2004) 222 CLR 1; (2004) 205 ALR 487 (“S152”). The relevant parts of the reasoning of the joint judgment (per Gleeson CJ, Hayne and Heydon JJ particularly) relied on are:
1)“…that the serious harm involved in what is found to be persecution may be inflicted by persons who are not agents of the state…” (at [18]).
2)“… in a case of alleged persecution by non-state agents, the willingness and ability of the state to discharge its obligation to protect its citizens may be relevant at three stages of the enquiry raised by Art 1A(2). It may be relevant to whether the fear is well-founded…” (at [21]).
Paragraph 21 of S152 is in the following terms:
“Having regard to both the immediate and the wider context, a majority of the House of Lords in Horvath took the view that, in a case of alleged persecution by non-state agents, the willingness and ability of the state to discharge its obligation to protect its citizens may be relevant at three stages of the enquiry raised by Art 1A(2). It may be relevant to whether the fear is well-founded; and to whether the conduct giving rise to the fear is persecution; and to whether a person such as the first respondent in this case is unable, or, owing to fear of persecution, is unwilling, to avail himself of the protection of his home state. Lord Hope of Craighead quoted with approval a passage from the judgment of Hale LJ in the Court of Appeal in Horvath where she said, in relation to the sufficiency of state protection against the acts of non-state agents:
‘[I]f it is sufficient, the applicant's fear of persecution by others will not be ‘well founded’; if it is insufficient, it may turn the acts of others into persecution for a Convention reason; in particular it may supply the discriminatory element in the persecution meted out by others; again if it is insufficient, it may be the reason why the applicant is unable, or if it amounts to persecution unwilling, to avail himself of the protection of his home state.’
[Footnotes omitted.]
The submission was that the word “may”, as it appears above, does not confer some discretion on the relevant decision-maker to decide whether to consider the question of state protection or not. This is said to be relevant as follows. In S152 the joint judgment provided that state protection was a relevant matter in the assessment of whether a person comes within the Refugees Convention definition of “refugee” in three ways. In the context of the current case, where the persecution alleged is from a non-state party (the Taliban), the willingness of the Afghani state to provide protection to the applicant may be relevant to:
1)Whether the applicant’s fear is well-founded;
2)Whether the conduct giving rise to the fear is “persecution”; and
3)Whether the applicant is unable or, because of the fear, unwilling to avail himself of the protection of the Afghani state.
(S152 at [21] – [23].)
The thrust of the applicant’s argument is that the use of the word “may” by the majority in S152 does not confer any discretion on the reviewer not to consider the issue of state protection. Rather, it reflects a situation in which there are a number of stages relevant to the inquiry raised by Article 1A(2) of the Convention, at each of which the reviewer may consider the ability of the state to offer effective internal protection, but must do so at least at one of the stages. This is because the concept of “protection”, meaning the state’s responsibility to safeguard rights and freedoms, is relevant to the interpretation of Article 1A(2).
In the current case, the applicant’s position, and with reference to the relevant question in considering whether the applicant’s fear is
well-founded, is that it is relevant to consider the availability of state protection.
I should just note that the dispute between the parties proceeds on the common ground that the reviewer did not consider whether state protection was available as part of his reasoning as to the question of whether the fear of persecution was well-founded. The dispute between the parties centres on whether the reviewer, in the circumstances, was obliged to consider the issue of state protection in addressing that question.
Consideration
For the reasons that follow, I do not agree with the applicant that the reviewer was obliged to do so in the circumstances presented by his case.
The applicant relied on the various judgments in S152 to support his position in a number of ways. In my respectful view, to properly understand each of the judgments requires some recollection of the facts before the High Court in that case.
For reasons which will become apparent below, it is not necessary in the current case to be concerned with the differences of approach to the different “theories” about the Refugees Convention (in the present context: Article 1A(2)): the “accountability” and “protection” theories, or the third approach taken by McHugh J in S152, albeit obiter, which rejected both theories (see in particular at [59], [66] and [69]).
In S152 the primary respondent was a Ukrainian national who claimed to fear serious harm in the Ukraine because of his Jehovah’s Witness religion.
He claimed to have been assaulted and to have had damage caused to his property in the past. He said that on one occasion the police responded to his call for assistance but that no formal report was made because he did not know the identity of his assailants. On a second occasion, when he attended at a police station, they refused to take a statement from him. The respondent also claimed that the Ukrainian government encouraged the persecution of Jehovah’s Witnesses through the state controlled media apparatus.
The Refugee Review Tribunal, whose decision was the subject of judicial review, accepted that he had been assaulted and that property damage had occurred because “some individuals were affronted by his religious beliefs” (at [10] of S152). But these acts were: “… seen as individual and random incidents of harm directed at the [first respondent] and not as persecution for a Convention reason” (at [10] of S152).
At [14] the majority said:
“It is also to be noted that the first respondent's case before the Tribunal was that the government of Ukraine actively encouraged persecution of Jehovah’s Witnesses. It was not asserted that the judicial system, or the police force, of the country lacked the power to deal effectively with unlawful violence, if they wanted to do so. The allegation was not one of absence of power, or even one of mere absence of will. It was one of positive encouragement of certain forms of unlawful violence. That was the context in which the Tribunal’s reasons were expressed. As sometimes happens, by the time the case reached a further level of
decision-making, a new point was made. But a fair reading of the Tribunal’s reasons requires an understanding of the case it was addressing.”
[Emphasis added.]
The applicant pressed that the majority judgment (at [21] of S152 – see [27] above) should be read as that the word “may” compels the Tribunal to consider the question of state protection at each of the stages of the relevant inquiry as set out there by the High Court. The submission was that the word “may” is used because there are three distinct stages, or aspects, in the consideration of the central question of a well-founded fear of persecution. The concept of state protection is, at least, relevant to one of each of the three “alternative” aspects or stages set out by the High Court, if not all, depending on the circumstances.
In my respectful view, the word “may”, as used in the joint judgment, should be read in light of its ordinary meaning. As derived from the Macquarie Dictionary (Revised Third Edition), the word carries with it an expression of uncertainty, to be possible, or to give permission. There is nothing that I can see in the judgment to suggest that the use of the word “may” carried with it a meaning other than what is understood in ordinary usage.
In this context, I read the joint judgment (with reference to [21]) as an expression of possibility, rather than as a mandatory obligation. That is, that where a case involves alleged persecution by non-state actors or agents, consideration of state protection “may” be relevant to whether the fear is well-founded, whether the conduct gives rise to the fear of persecution, or whether the relevant person is unable or unwilling to avail themselves of the protection of their home state. In my respectful view, when read in this way, and depending on the circumstances of the particular case, it equally “may” not be relevant.
That view also derives from what McHugh J said in the same case at [32] to [34]. I respectfully read what his Honour said, as read by Raphael FM (SZDBB & Ors v Minister for Immigration & Citizenship [2006] FMCA 298 at [7]), as standing for the proposition that: “… there is no need to test whether a state complies with the international norms of the provision of adequate protection unless the applicant is in need of that protection.”
The applicant focussed on that part of McHugh J’s judgment sitting in the middle of that part referred to above (that is, at [33]):
“In determining the issue of well-founded fear, the critical question is whether the evidence established a real chance that the asylum seeker will be persecuted for a reason proscribed by the Convention, if returned to the country of nationality. If the evidence shows that the persecutors have targeted the asylum seeker, the ability of the country of nationality to protect that person will be relevant to the issue of well-founded fear.”
However, what is particularly instructive for current purposes is what immediately follows (also at [33]):
“If the evidence shows no more than that private individuals randomly harm the class of persons to which the asylum seeker belongs but fails to show that that person has a real chance of suffering harm, the ability of the country to eliminate those acts is irrelevant.”
The applicant also relied on the majority judgment reference to the Canadian Supreme Court in Canada (Attorney-General) v Ward [1993] 2 SCR 689 (at 710): “[The Attorney-General] also argued that state complicity is a prerequisite to persecution, but conceded that a state's inability to protect its citizens amounts to complicity if what is involved is otherwise persecution on a Convention ground.” (S152 at [22] per Gleeson CJ, Hayne and Heydon JJ.)
The emphasis now on the first part of this quote is, in my view, misleading. The latter part makes clear, as does a plain, holistic and respectful reading of the other parts of S152 relied on by Mr Blount, particularly when seen in the factual circumstances in that case, that state protection becomes a relevant consideration when the circumstances of a particular case present some conduct amounting to serious harm for a Convention reason (persecution).
The circumstances of the current case are such that the issue of state protection does not arise given the reviewer’s finding that the applicant could return to his home location, part of the Hazara homeland, without raising any real risk of harm for any Convention reason.
I agree with Mr Markus that the relevant authority provides that it is the circumstances of each particular case, and the findings made by the relevant decision maker in those circumstances, that will dictate whether the issue of state protection needs to be dealt with at an earlier or later stage (with reference, for example, to the instances given at [21] of S152), or not at all.
In my view, probably on a plain, but certainly on a fair reading of the reviewer’s decision record, and in particular focussing on [111] (at CB 184 – see [24] above), the reviewer’s relevant findings were that, as an Hazara, there was, on the evidence before him, no real risk of serious harm befalling the applicant if he were to return to his home district.
As part of his reasoning, the reviewer made reference to:
“… the protection afforded by the Hazara faction which is strong across the Hazarajat including the Jaghori area…” ([109] at CB 184).
The use of the word “protected” does not, at least on a fair reading and in context, mean that the reviewer had moved to consider the issue of state protection, or to consider that the applicant specifically can be “protected” by the Hazara factions.
A plain reading of the reviewer’s relevant reasoning is that the applicant could safely return to his home village in the Jaghori district of the Hazarajat, an area dominated by Hazaras. Relying on country information the reviewer found that Jaghori was “secure”. In part, this was because of the “military and political power” of the Hazara factions.
To the extent that the reviewer made reference to the “protection” offered by those factions then, in context, what is obviously meant as a description of the dominating presence of Hazaras and the robust presence of Hazara factions in the relevant district and the Hazarajat such that, whatever else may occur in the rest of the country, there is no real risk of any threat of serious harm to any Hazara as such in that area from the Taliban.
There is a distinction to be drawn between a risk free (in terms of the real chance test) environment for any Hazara (including the applicant) and the lack of any necessity to further consider the question of whether protection can be adequately offered by the Afghan state in circumstances where there is no need for that protection.
Simply put, the reviewer’s findings, which were all reasonably open to him on what was before him, meant that there was no need to consider the issue of Afghan state protection in the absence of conduct or actions (past or likely in the future) by any third party (the Taliban) which could amount to persecution in relation to the applicant, and in the circumstances he presented. There is nothing, in my respectful understanding of the majority judgment in S152, or for that matter the other judgments in that case, to suggest a need to consider, in the circumstances of this case, the question of state protection.
In submissions the applicant also referred to the judgment of Kirby J in S152, and the reference there to Minister for Immigration v Khawar [2002] HCA 14; 210 CLR 1; 187 ALR 574 (“Khawar”) (at [101]):
“…However, another class that will enliven the Convention is a case like Khawar, where the agencies of the state are unable or unwilling to provide protection to their nationals. Where the evidence establishes that this is the case it will potentially lend support to claims of ‘fear’. It may sustain such claims of fear as ‘well-founded’. This is because, to the extent that state agencies or officials engage in the harmful conduct or neglect or omit to provide protection or redress, they render subjective fears substantial and ‘well-founded’. They are ‘well-founded’ because of the protective role ordinarily to be attributed to a state and its functionaries, the resources that the state normally has to carry out its functions and the scope for sustained oppression where the state is actively or passively involved in the conduct amounting to ‘persecution’.”
[Footnotes omitted.]
The submission was that the reasoning in S152, as already set out above, and the example of the reference to Khawar by Kirby J, support the proposition that where the evidence establishes a threat of persecution from a non-state actor, the unwillingness or inability of the state to provide internal protection is relevant.
Given the situation in Khawar, Kirby J’s reference to it in the circumstances of the consideration in S152 is, in my respectful view, clear and does not assist the applicant now. Mrs Khawar was a member of a class of persons in her home country who suffered from domestic violence (at the hands of her husband and his family) in circumstances where the state actively tolerated and condoned such conduct inflicting harm. The reliance now on this reference by the applicant reveals his misunderstanding, or even the misrepresentation, of the reviewer’s actual reasoning.
It is not the case that it is sufficient to simply say that, where the evidence establishes a threat of persecution from a non-state actor, that alone means the role of the state is relevant. It is not for the Court to make such findings of fact based on the evidence.
As Kirby J also said (at [123]):
“By the same token, the Federal Court must also be careful not to read the Tribunal’s reasons in an overzealous or overcritical way or to allow unsuccessful applicants to turn an application for judicial review into an attempted reconsideration of the factual merits. Essentially, that is what the applicants tried to achieve. Their attempt fails.”
[Footnotes omitted.]
So too, obviously, it equally applies to this Court.
It is the case that there was evidence before the reviewer that Hazaras face persecution at the hands of non-state agents such as the Taliban. The reviewer acknowledged this (for example, see [97] at CB 181). That may well be the case. But the fact that such evidence was before the reviewer does not permit the Court to intervene and challenge the reviewer’s factual findings, and to substitute its own (Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259; (1996) 136 ALR 481; (1996) 70 ALJR 568 (“Wu Shan Liang”)).
The applicant also misconstrues the reviewer’s relevant findings as follows. Notwithstanding his representative’s bare submission that Hazaras face harm from the Taliban in Afghanistan, and country information that there is a lack of “effective protection from the state in Ghazni” (CB 142.5), the reviewer found, based on country information before him which he preferred as it related to Jaghori, that in his home area the applicant would not face a real chance of serious harm from the Taliban. The reviewer’s reasoning and findings, spread over [103] (at CB 142) to [113] (at CB 184), were all reasonably open to him on all of the evidence before him, and were findings for which he gave reasons.
The applicant’s challenge now comes close, if not actually invites the Court to engage in impermissible merits review (Wu Shan Liang).
Further, the mere fact that the applicant’s representative raised the issue of state protection before the reviewer (see for example at CB 95.3, CB 95.4, CB 97.5 and CB 116.7) did not compel the reviewer to consider it. Such compulsion would arise were the reviewer to have otherwise found that the applicant did face a threat of serious harm in his home district. However he did not so find.
The respondent relied on Siaw v Minister for Immigration and Multicultural Affairs [2001] FCA 953 (“Siaw”), especially at [7] to [8], for the propositions that (as still applies) the “… the [reviewer’s] initial task was to determine whether or not the applicant had a well-founded fear of persecution”. It is only if “… such a fear existed, [he] was then required to decide whether the applicant’s state of nationality was or was not able to offer protection to him”.
The Court said:
“[7] The applicant submitted that the Tribunal erred in holding that the ‘relocation principle’ is applicable where the protection available is provided by an armed international force and not by an applicant's own State. The Tribunal did not so hold. The Tribunal twice noted that government forces had regained control of Freetown in early 1999. Later it said that the government controlled Freetown and surrounding areas and had disarmed about one third of the combatants it had aimed to disarm by December 1999. Then it referred to the fact that Freetown and its surrounding areas had been secured by the government and UN forces. Yet again it referred to Freetown and its environs having been secured by the UN and government forces. In announcing its conclusion that the applicant did not face a real chance of persecution in Freetown and its environs, the Tribunal attributed this to the fact that the ‘current combination of UN and government security forces’ would provide adequate protection. At no stage did the Tribunal attribute the applicant's safety solely to the UN forces. Although the Tribunal's formulation of its holding varied from place to place, a fair reading of its reasons is that it was a combination of UN and government forces that would provide adequate protection. For the Tribunal to have erred in relation to the ‘relocation principle’, the applicant would have to establish that it was in error in accepting that protection could be provided by forces that were to any extent international in character. In any event, the applicant's submission, whether as formulated or as it must in my view be formulated, misunderstands the Tribunal's course of reasoning. As a result of cl 866.221 of Schedule 2 of the Migration Regulations 1994, Australia has protection obligations under the Refugees Convention to an applicant who:
‘... owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country ....’
Accordingly, the Tribunal's initial task was to determine whether or not the applicant had a well-founded fear of persecution for a Convention reason. If such a fear existed, it was then required to decide whether the applicant's state of nationality was or was not able to offer protection to him. On the first part of its task, after assessing the material before it, the Tribunal found that Freetown and its environs were secure, that the applicant would be able to live there safely, and that he did not have a well-founded fear of persecution ‘at least for the reasonably foreseeable future’. The political composition of those who are keeping the peace and making an area secure is not relevant to the assessment of whether an applicant has a well-founded fear. In this connection I see no difference between cases where adequate protection is provided
* entirely by government forces
* by a combination of government forces and friendly forces
* by forces from a neighbouring country or ally
* by mercenaries (alone or paid to assist government forces)
* by United Nations forces invited to assist government forces.
[8] Although the submission at present under consideration does not appear to have been put to Heerey J in Cole v Minister for Immigration and Multicultural Affairs [2000] FCA 1375 or to the Full Court on appeal [2001] FCA 76, that case supports the view that so long as an area is safe for an applicant to return to, the consequence of which is that any fear of return he may have is not well-founded, it does not matter that that safety is brought about by UN as well as government forces. Cole is relevantly indistinguishable from the present case. The Tribunal's findings in that case, based on the same country and other information about Sierra Leone, were substantially the same as those made by the Tribunal in the present case. The Tribunal in Cole found that the presence of the UN in Sierra Leone, particularly in and around Freetown, and its commitment to implementing the peace agreement, made it safe for the applicant to return without a real chance of facing persecution in the reasonably foreseeable future. Heerey J rejected various attacks on the Tribunal's decision and dismissed the application for review. On appeal the Full Court upheld Tribunal findings in substantially the same terms as those made by the Tribunal in the present case, concluding on that basis that there was no real chance of the applicant being persecuted on his return and that accordingly, any fear of persecution he may have was not well-founded.”
With respect, I do not see this as being inconsistent with what was said in S152. In other circumstances it may well be that the ability of the state to protect its citizens in the face of harm by non-state agents “may be relevant” to whether an applicant’s fear is well-founded. But it is also the case (as I respectfully understand it) that it may not be, again depending on the particular circumstances.
In my respectful view, Siaw (and the reference there to Cole v Minister for Immigration and Multicultural Affairs [2000] FCA 1375 and on appeal in Cole v Minister for Immigration & Multicultural Affairs [2001] FCA 76) stands for the proposition that effective protection available from a variety of sources, whether in part by the state and by partly non-state actors or even in whole from non-state actors, acts to negate a claim of a well-founded fear of persecution, such consideration being relevant and necessary, but dependent on the particular circumstances of each case.
When seen in this light, there is no need for this Court to consider submissions about whether the Court should disregard the judgment of a single judge of the Federal Court (albeit relying in part on another single judgment undisturbed on this point on appeal) in favour of the High Court. Happily for this Court, in my respectful view there is no inconsistency in the respective judgments.
Further, the applicant’s reliance on the referral by the majority in S152 to Horvath v Secretary of State for the Home Department [2000] UKHL 37; [2001] 1 AC 489; [2000] 3 All ER 577 (“Horvath”) also does not assist him.
For current purposes, it is important to note that the reference by the majority to Horvath was, in my respectful view, used to explain the majority view of “surrogate protection” in the consideration of state protection and international responsibility under the Convention. Their Honours’ application of the consideration of relevant principles and what was said by the majority of the House of Lords in Horvath to the case before them (especially at [29]) was reflective of the situation, amongst other things, that the issue of the consideration of state protection in any one case would most usually only arise where the harm feared was not from the state or one of its agents.
Obviously, it would be an unusual set of circumstances that would require consideration of state protection where the perpetrator of persecution was the state itself, although there may be situations where such consideration may arise, for example involving competing agents of the state.
In any event, that part of S152 relied on by the applicant now is a discussion about state protection “in a case of alleged persecution by non-state agents” as was in that case (at [21], and elsewhere). It does not follow that in every case of alleged persecution by a non-state agent state protection must be considered.
What is missing in the applicant’s argument is that part of Siaw (which is not inconsistent with S152) that in effect suggests that what triggers the need to consider the issue of state protection is not whether a
non-state agent is the persecutor, but whether the applicant has a
well-founded fear of persecution such that the ability of the state to discharge its protection obligation becomes at issue.
As I keep emphasising, and as is made clear in the authorities, this depends on the circumstances of the individual case.
In the current case the applicant, as an Hazara, claimed to fear harm in all of Afghanistan from the Taliban. The reviewer found that fear was not well-founded in relation to the applicant’s home district. In these circumstances there was no opportunity, nor any obligation, to consider the adequacy of state protection. The following, more than rhetorical, question makes this clear: Protection against what?
That the Taliban may seek to harm the applicant if he were to return to another part of Afghanistan, that the applicant’s representative put evidence of the inadequacy of state protection in general in Afghanistan before the Tribunal, even that the applicant may have had a subjective fear if he were to return to his home province, does not assist the applicant in circumstances where the reviewer made findings that he was safe to return to his home district, and would be safe in the foreseeable future. Findings, as I have already said, which were open to him on what was before him.
In all, therefore, grounds 1, 2 and 4 are not made out. The reviewer did not misunderstand the correct test, he did not fail to take into account a relevant consideration. The lack of evidence to ground the Tribunal’s relevant reasoning, asserted by the applicant now, goes to the issue of the adequacy of protection afforded by the Afghan state. For the reasons set out above, the question of the adequacy of state protection offered by the Afghan state was not, in the circumstances, a question that the reviewer was required to address.
Ground 5 of the amended application complains that the reviewer failed to assess the reasonableness of requiring the applicant to live in the Jaghori district. In doing so, he applied the wrong test. The applicant submits that the reviewer should have considered whether the applicant’s unwillingness to return to his home district was objectively “reasonable” (with reference to Randhawa v Minister for Immigration, Local Government & Ethnic Affairs [1994] FCA 1253; (1994) 52 FCR 437; (1994) 124 ALR 265 at 442 (of the FCR publication)).
The applicant’s written submissions are unclear as to the exact line of attack on the reviewer’s decision here. For example, it is not clear whether the matter of the applicant’s travel to his home district, presumably from Kabul, is directed to ground 5, or ground 6, or both. Nor, it must be said, were the oral submissions of assistance in explaining the exact attack. I have proceeded on the basis that the matter of the applicant’s return to his home district, the matter of the so-called “secure routes”, appears to feature in both grounds.
In all, I understood ground 5 to proceed on the assumption that the reviewer should have, or had improperly, assessed the applicant’s circumstances in “relocating” to his home district.
However, the immediately relevant question for the reviewer was whether there was a well-founded fear of persecution for a Convention reason if the applicant were to return to his home country. Here, the relevant standard is whether the reviewer can be satisfied that the applicant’s claimed subjective fear also has an objective element. That is, whether the fear can be perceived as arising from a “real chance” of persecution for a Convention reason (see Chan Yee Kin v Minister for Immigration & Ethnic Affairs [1989] HCA 62; (1989) 169 CLR 379 (“Chan Yee Kin”) per Dawson J at 396-8, per Mason J at 389, per Toohey J at 406-7, and per McHugh J at 428-9, Wu Shan Liang per Brennan CJ, Toohey, McHugh and Gummow JJ at 263 and Minister for Immigration & Ethnic Affairs v Guo [1997] HCA 22; (1997) 191 CLR 559; (1997) 144 ALR 567 (“Guo”)).
As the Minister submits, in the current case the reviewer found that the applicant could return to his home region of his country of nationality in circumstances where he did not have a well-founded fear of serious harm (persecution) if he were to do so. The applicant’s argument appears to confuse, or conflate, the return from outside that country to a home region of the country of nationality, with relocation within that home country of nationality. The references in submissions to such factors as freedom of movement within Afghanistan, and in particular to his home region, the “internal” safety of the applicant, and the adequacy of protection offered by the Hazara factions, all point to some attack on the reviewer in the claimed failure to consider the reasonableness of returning to his home area.
In one sense, this is an attack on the merits of the findings actually made by the reviewer, and therefore seeks impermissible merits review (Wu Shan Liang). In another sense, it attributes a test of particular reasonableness to the well-founded fear test. An element more suited or appropriate to the test of relocation.
In all, the reviewer’s finding that the applicant did not have a
well-founded fear of persecution for a Refugees Convention reason if he were to return to Afghanistan, a finding open to him on what as before him and for which he gave reasons, is without legal error, and this means that the applicant’s attack in this ground does not succeed in revealing jurisdictional error.
As the Minister submits, in the circumstances the reviewer was not required to consider the issue of relocation (as it is understood in the context of the Refugees Convention) and was not therefore required to apply the test of “reasonableness” as being required in that consideration as propounded now by the applicant. Ground 5 is not made out.
I should just note that, to the extent that the applicant’s attack includes some failure to properly assess the quality of protection offered by the Hazara factions and the failure to consider the “reasonableness” of such protection, this attack also does not succeed.
This particular aspect of the applicant’s case before the Court was explained in submissions as being that the Hazara factions are “not necessarily benevolent entities”, and therefore this required some assessment of the reasonableness of the applicant accepting their protection.
This fails for two reasons. First, as set out above, the test of “reasonableness” as it applies to relocation is not relevant to this particular assessment. Second, and in any event, the reviewer found, based on country information before him, that: “… there is not a situation of generalised violence in Hazara-dominated districts in Ghazni province which prevents the claimant from residing there.” ([111] at CB 184.) There was no other relevant coherent claim before the reviewer that, as an Hazara returning to his home district – an Hazara dominated district – the applicant would suffer serious harm from the Hazara factions for this or any other reason.
In ground 6 the applicant asserts a denial of procedural fairness. The terms of this ground are identical to that in SZQDS, however Mr Flecknoe-Brown’s submissions clarified, with reference to written submissions filed in this matter, that the applicant’s complaint is that the reviewer, based on country information, took the view that the availability of Hazara factional protection made the question of state protection irrelevant.
The attack draws from the assertion that the applicant’s case, as presented to the reviewer, was that there was an absence of effective state protection and, when coupled with the qualitative difference between effective state protection and that said to be offered by, often conflicting, factions (the Hazara factions), leads to a well-founded fear of persecution.
The attack is not necessarily on the reasoning adopted by the reviewer, but that the particular reasoning adopted in the face of the applicant’s case was not made known to the applicant, nor was it such that can be said to arise from the circumstances such that the failure to put this to the applicant led to a failure of the reviewer’s procedural fairness obligations towards the applicant.
Mr Flecknoe-Brown referred the Court to a part of Chapter 8 of Aronson & Dyer,[2] which discusses relevant procedural fairness obligations at common law in the area of adverse conclusions drawn by an administrative decision-maker. It is helpful to set out the principles referred to by the applicant, both in understanding his case and also as the basis, ultimately, as to why his ground does not succeed:
1)Procedural fairness does not normally require decision-makers to disclose their thinking processes or proposed conclusions (Hoffman La Roche v Trade Secretary [1975] AC 295 per Lord Diplock at 369, Sinnathamby v Minister for Immigration and Ethnic Affairs (1986) 66 ALR 502 per Fox and Neaves JJ (Burchett J disagreeing), Ansett Transport Industries Ltd v Minister for Aviation (1987) 72 ALR 469 per Lockhart J at 499, Luu v Renevier (1989) 91 ALR 39 per Davies, Wilcox and Pincus JJ at 44-46, Powerlift (Nissan) Pty Ltd v Minister of State for Small Business, Construction and Customs (1993) 40 FCR 332 per Hill J at 354, R v Secretary of State for Education; Ex parte S [1995] 2 FCR 225 (Eng CA) 15 July 1994 per Peter Gibson LJ, Li Shi Ping v Minister for Immigration, Local Government and Ethnic Affairs (1994) 35 ALD 395 per Drummond J, appeal allowed (not on this issue), Li Shi Ping v Minister for Immigration, Local Government and Ethnic Affairs (1994) 35 ALD 225, Commissioner for the Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 (“Alphaone”) per Northrop, Miles JJ and French J (as he then was) at 590-591, Telstra Corp Ltd v Kendall (1995) 55 FCR 221 per Black CJ, Ryan and Hill JJ, Laycock v Forbes (1997) 150 ALR 186 per Goldberg J, Chiropractors Association of Australia (SA) Ltd v WorkCover Corporation of South Australia [1999] SASC 120 per Doyle CJ at [87] (appeal dismissed Chiropractors Association of Australia (SA) Ltd v WorkCover Corporation of South Australia (1999) 75 SASR 374), and Asiamet (No 1) Resources Pty Ltd v Federal Commissioner of Taxation (2003) 196 ALR 692 per Emmett J at 713-714) [at page 578].
2)In comparison with adversarial proceedings, the nature of the inquisitorial proceedings before the reviewer is such as to increase the potential for findings and conclusions to be made by the reviewer unforeseen by the applicant [at page 580].
3)The disclosure of an adverse conclusion will be necessary where the conclusion is not obvious or anticipated, or is “not reasonably be expected” (Jobst v Inglis (1986) 41 SASR 399, Government Insurance Office of New South Wales v Bailey (1992) 27 NSWLR 304) [at page 579].
[2] Mark Aronson, Bruce Dyer, Matthew Groves, Judicial Review of Administrative Action – Fourth Edition, Lawbook Co., Thomson Reuters, Sydney, 2009.
The applicant’s attack is that, given the way his case was presented, it was not anticipated by the applicant that the protection offered by the Hazara factions would be a substitute for state protection. In addition he argued that the way in which the reviewer raised this proposition (that the Hazara factional protection would substitute for state protection), a proposition on which the reviewer ultimately relied, denied the applicant the opportunity of ascertaining the relevant issues such that he could meaningfully respond (with reference to Alphaone).
In essence, and with reference to what has been described as the “natural justice” letter (see CB 138 and attachments – CB 139 to CB 146) of 17 January 2011, the applicant’s complaint is that there were some general references in that letter and a large amount of country information sent to the applicant, but that the applicant’s attention was not drawn to the issue that ultimately went against the case he raised.
At best, it was said, the letter drew the applicant’s attention to (at CB 138) “… There is not a situation of generalized violence in
Hazara-dominated districts in Ghazni province which prevents the claimant from residing there…” but did not deal with the information that ultimately led the reviewer to conclude adversely to the applicant in his quest to be recognised as a refugee.
The short answer to the applicant’s complaint is that the reviewer was not restricted to the “natural justice” letter in meeting his procedural fairness obligation. The reviewer is not operating in the context of s.424A of the Act and the Refugee Review Tribunal prior to the amendments of 29 June 2007 (Migration Amendment (Review Provisions) Act 2007 (Cth) where information that would be the reason for affirming the delegate’s decision had to be put to the applicant in writing (see SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 162. See also SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 235 ALR 609 as to what constitutes “information” in that context).
In any event, I agree with Mr Markus that, when regard is had to relevant parts of the transcript of the interview (“T”) with the applicant by the reviewer, the references there to country information concerning Jaghori, that it is about “100% Hazara” dominated, the lack of influence and the absence of the Taliban from that area, and the presence of a number of Hazara factions, are sufficient to have alerted the applicant to the relevance of this information to the applicant’s claimed circumstances, and the reviewers proposed course of action (see in particular T8, T12-T13, T17. See also the reference to the “CPAU” report).
The applicant’s agent was present at the interview (CB 161 and the transcript of the interview). An interpreter in the relevant language was also present (CB 161). It cannot be said, on what transpired at the interview in this regard, that the applicant did not have an opportunity of ascertaining the issue from which the reviewer’s relevant consideration derived. Nor can it be said that he was not informed of the nature and content of the material that was ultimately adverse to his cause. He was plainly given the opportunity to address this (with reference to Alphaone). The fact that the applicant did not accept this material, for example his insistence that the Taliban was “quite strong” back in his village, does not disclose any failure of procedural fairness on the part of the reviewer.
Ground 6 is not made out.
In ground 7 the applicant again asserts a breach of procedural fairness. The particulars explain that this is because the reviewer relied on country information which was not put to the applicant for comment. The particulars do not identify this country information. The written, and in particular oral submissions, resolved that the complaint centres on a newspaper article which was said to have been relied upon by the reviewer in support of the proposition that the Hazara community in the Jaghori district enjoy better educational facilities than in neighbouring provinces. The newspaper article: “Ghazni-Schools-not-under-Taliban-control” was referred to by the reviewer in his record (see [76] at CB 178 and at footnote 23). The applicant’s attack is that the reviewer used this information to support the findings in relation to the situation and conditions in the Jaghori district. That is, that the applicant could live there and not suffer serious harm.
The attack postulates that this article was not given or notified to the applicant in circumstances where it may have been given weight by the reviewer because one of the applicant’s claims was that his father had been warned by the Taliban to stop teaching.
It must be said that it is a stretch to see that this ground, as explained in submissions and in the circumstances of this case, rises to a credible assertion of legal error on the part of the reviewer.
First, the immediate and central task for the reviewer is to assess whether the applicant has a well-founded fear of persecution for a Convention reason. As was explained in Chan Yee Kin, a fear of being persecuted is said to be well-founded if there is a “real chance” of being persecuted (at 389 per Mason CJ, 406 per Toohey J, 396-8 per Dawson J, and 428-9 per McHugh J).
Second, the test is a forward looking test. The process of being satisfied as to whether the applicant’s fear is well-founded involves the decision-maker in making findings of fact derived from the evaluation and assessment of an applicant’s claims and, in the context of the independent merits review process (given the nature and profile of cases), an assessment of relevant country information.
This also involves applying those findings to what is likely to occur in the reasonably foreseeable future. That is, whether there is a real chance that persecution will occur if the claimant were to return to the country of claimed persecution (see in particular Wu Shan Liang per Kirby J at 294 and per Brennan CJ, Toohey, McHugh and Gummow JJ at 279).
It is the situation that, in a large number of cases, what is said to be likely to occur in the future will depend on what has, and what is found to have, occurred in the past. However, as was said in Guo at 574 per Brennan CJ, Dawon, Toohey, Gaudron, McHugh and Gummow JJ, past events are not a certain guide to the future, though they often provide a reliable basis for determining the probability of their recurrence (at 574).
The assessment of what is likely to occur in the future involves a question of degree. In Guo (at 574-575):
“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 injury, that person or tribunal has no rational basis for determining the chance of an event in that field occurring in the future.”
While an applicant does not have to reveal past persecution to demonstrate a well-founded fear of being persecuted in the future (Abebe v The Commonwealth [1999] HCA 14; (1999) 197 CLR 510; (1999) 162 ALR 1; (1999) 73 ALJR 584 per Gummow and Hayne JJ at 52), it will not always be that past events will provide the means for establishing persecution in the future. As was said by a Full Federal Court (in VAJ v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 59 per Wilcox, Cooper and Allsop JJ at [16]), the past is not to be examined for its own sake, but rather for what it can say about the future.
From submissions, there are two aspects to the applicant’s complaint. The first is that the article may have been given weight because the applicant had claimed that his father was warned by the Taliban to cease teaching. I understood this aspect to go to the question of the relevance and significance of the information to the decision. The reviewer was plainly and properly concerned to deal with each aspect of the applicant’s claims. The applicant did claim a family history of fear of threat and harm from the Taliban. A fear that he said was the reason the family left Afghanistan in 1996.
To the extent, therefore, that at least implicitly the applicant seeks to challenge that aspect of the reviewer’s reasoning (that the applicant was not likely to suffer persecution on return arising from his threats from the Taliban to his father), this is nothing more than the reviewer looking at the past to see if it can illuminate the likelihood of persecution in the future. It was plainly open in the circumstances presented for the reviewer to form the view that the events leading to the family’s relocation to Pakistan were “now distant in time” (with reference to [114] at CB 184).
The “weight” that the reviewer gave to the newspaper article needs to be seen in that context. The reviewer’s relevant finding was that the applicant’s claim that what had occurred in the past would lead to a real chance of persecution in the future was not made out because those events were in the far past and did not have a contemporary bearing. The reviewer’s observation that schools in the Jaghori district continue to function was a part of the general confirmation of the finding that those events of the past would not lead to a well-founded fear of persecution in the future. In this sense, I agree with Mr Markus’ description of the significant of the challenged information as being “dubious”.
This view is supported by the ultimate conclusion on this point made by the reviewer. While the reviewer considered the reasons for departing Afghanistan in 1996, and made reference to schools continuing to function in Jaghori (at [114]), the reason that he rejected the applicant’s claim to fear persecutory harm because of the Taliban’s threats to his father before 1996 was that it was in the distant past and the passage of time meant it was no longer a matter of significance. That schools in Jaghori continued to operate was a part of the current situation that supported the reviewer’s view about the impact of the past on the foreseeable future.
The second element to the attack is that the information (assuming that it was credible and relevant, and prejudicial to the applicant’s cause) was not put to him for comment. I agree with Mr Markus that the substance of that information was put to the applicant. In the attachment to the reviewer’s letter of 17 January 2011 (CB 138, and CB 145) there is a reference to a DFAT report and a Finnish Immigration Service Report (2009)[3] which stated that the Hazara community, particularly in the Jaghori district, enjoyed, amongst other things, better educational facilities than in neighbouring provinces.
[3] DFAT, AFGHANISTAN: Situation in Ghazni Province – views of Member of Parliament.
On its own it is, as Mr Flecknoe-Brown submits, procedurally unfair of the reviewer to just send a large bundle of information and, with nothing further, expect the applicant to understand the relevance and significance of this one piece of information such that he could know the case against him, and to thereby have the opportunity to make a meaningful response. But there are two factors in the current case that count against the applicant in this regard.
First, the actual observation has two elements: that schools continue to function in Jaghori; and that Jaghori is a district where there is a relatively high level of education for both boys and girls.
The latter element does not reveal any failure of procedural fairness. That point was contained in a report provided by the applicant’s agent to the reviewer. The reviewer acknowledged this (see fn. 40 and [114] at CB 184). The applicant can hardly complain of being caught by surprise when what is relied upon was provided by his agent to the reviewer in connection to the review.
As to the former element, the applicant was on notice following the interview with the Refugee Status Assessor at the primary stage of the process of assessing his claims to protection of the Finnish Immigration Service report and its reference to the education situation in Jaghori (see the affidavit of Meredith Anne Simmons at Annexure “A”, page 16). Both the report and the school situation in Jaghori were mentioned in the assessor’s decision record (see CB 80.9 to CB 81.4).
In all, therefore, ground 7 as pressed in oral submissions is not made out.
In written submissions the applicant identified three other documents which can be classed as country information. The first two documents were the report by the UN Assistance Mission in Afghanistan[4] (see [10.4] of applicant’s submissions) and the 2010 UN Security Council report (see above). The claim is that these two documents discuss the poor security circumstances in Afghanistan and were not provided or notified to the applicant. The applicant contends that the reviewer relied on this information to infer that there was no targeting of Hazaras or Shias on a general or indiscriminate basis (see [66] at CB 176 and [99] at CB 181). The UN report was also specifically focussed on the indiscriminate use of improvised explosive devices and assassinations targeting government officials, civilians and members of the Afghan Security Forces.
[4] Afghan civilian casualties rise 31 per cent in first six months of 2010.
First, as plainly set out in the reviewer’s decision record, there were a wide range of sources to which the reviewer had regard in relation to the applicant’s claim to fear harm because he was an Hazara and Shia (see [99] at CB 181).
Second, the applicant’s ethnicity and religion were specifically raised in the reviewer’s letter of 17 January 2011 (CB 138). The letter attached relevant excerpts from a large number of sources and specifically drew the applicant’s attention to the relevance of this information to his claim that he feared persecutory harm because of his ethnicity and religion. The applicant was told that the information may lead to a conclusion that the applicant did not have a well-founded fear of persecutory harm. The UN Assistance Mission Report was specifically mentioned in this material (see CB 141.3).
The UN Secretary General’s report, and the reference to improvised explosive devices, was referred to in an article[5] where a specific quote was made of the UN report and improvised explosive devices (CB 152). This article was provided by the applicant, through his representative, to the reviewer (CB 147 to CB 157). In any event, the substance of this information (I.E.Ds) was also provided to the applicant as an attachment to the letter of 17 January 2011 (see CB 305 and CB 333).
[5] Professor William Maley, On the Position of the Hazara Minority in Afghanistan December 2010.
The third document was a Department of Immigration and Citizenship Information Service 2009.[6] The applicant submits that the reviewer relied on this information to demonstrate that Jaghori was an almost “100% Hazara” region. The complaint is that, while a reference is made to this information at fn. 15 of the “natural justice letter” (CB 144), no “web address” or other summary of the report was provided.
[6] Country Information Report No 09/14 – CIS Request No AFG9505.
Again, as referred to above, the principle to be applied here is not whether the applicant was given every single document referred to in full, but rather whether the applicant knew the case against him.
The relevant information that the reviewer relied on was that Jaghori is almost an “100% Hazara region”. The substance of that information and the relevance to the reviewer’s reasoning was squarely put to the applicant in such a way that he knew the case against him (CB 144):
“Numerous reports show Jaghori is an almost 100% Hazara region with a population of perhaps 250,000 with some enclaves of Pashtuns towards the outskirts, and Angori village which is populated mainly by Pashtuns.”
In all, ground 7 is not made out.
Conclusion
Even with the benefit of legal representation, none of the applicant’s grounds reveal error on the part of the reviewer. The application is to be dismissed.
I certify that the preceding one hundred and twenty-nine (129) paragraphs are a true copy of the reasons for judgment of Nicholls FM
Date: 27 October 2011
Finnish Immigration Service Situation Report, The Current Situation in the Jaghori District of Ghazni, EURASIL 10.12.2009.
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