SZQDS v Minister for Immigration
[2011] FMCA 776
•27 October 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZQDS v MINISTER FOR IMMIGRATION & ANOR | [2011] FMCA 776 |
| MIGRATION – Review of decision of an Independent Merits Reviewer – whether the applicant was afforded procedural fairness – whether the reviewer erred in not considering the adequacy of state protection – consideration of the meaning of “may” in relation to state protection – request for impermissible merits review – no jurisdictional error – application dismissed. |
| Migration Act 1958 (Cth), s.476 |
| Plaintiff M61/2010E v Commonwealth of Australia; Plaintiff M69 of 2010 v Commonwealth of Australia [2010] HCA 41; (2010) 272 ALR 14 Razai v Minister for Immigration & Citizenship & Anor [2011] FMCA 777 Minister for Immigration and Multicultural Affairs v Respondents S152/2003 [2004] HCA 18; (2004) 222 CLR 1; (2004) 205 ALR 487 SZDBB & Ors v Minister for Immigration & Citizenship [2006] FMCA 298 Canada (Attorney-General) v Ward [1993] 2 SCR 689 Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259; (1996) 136 ALR 481; (1996) 70 ALJR 568 Collector of Customs v Pozzolanic Enterprises Pty Ltd [1993] FCA 456; (1993) 43 FCR 280; (1993) 115 ALR 1 Minister for Immigration v Khawar [2002] HCA 14; (2002) 210 CLR 1; (2002) 187 ALR 574 Siaw v Minister for Immigration and Multicultural Affairs [2001] FCA 953 Cole v Minister for Immigration and Multicultural Affairs [2000] FCA 1375 Cole v Minister for Immigration & Multicultural Affairs [2001] FCA 76 Horvath v Secretary of State for the Home Department [2000] UKHL 37; [2001] 1 AC 489; [2000] 3 All ER 577 Randhawa v Minister for Immigration, Local Government & Ethnic Affairs [1994] FCA 1253; (1994) 52 FCR 437; (1994) 124 ALR 265 Chan Yee Kin v Minister for Immigration & Ethnic Affairs [1989] HCA 62; (1989) 169 CLR 379 Minister for Immigration & Ethnic Affairs v Guo [1997] HCA 22; (1997) 191 CLR 559; (1997) 144 ALR 567 Kioa v West [1985] HCA 81; (1985) 159 CLR 550; (1985) 62 ALR 321 VAAC v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 74 Minister for Immigration and Multicultural and Indigenous Affairs v Applicants S194 of 2002 [2003] FCAFC 273 |
| Applicant: | SZQDS |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | CHRISTOPHER PACKER IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER |
| File Number: | SYG 728 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 S Blount |
| Solicitors for the Applicant: | Koutzoumis Lawyers |
| Appearing for the Respondents: | Mr A Markus |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application made on 14 April 2011, and amended on 30 June 2011, is dismissed.
The applicant pay the first respondent’s costs set in the amount of $4,500.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 728 of 2011
| SZQDS |
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 14 April 2011 under s.476 of the Migration Act 1958 (Cth) (“the Act”) seeking review of the recommendation made on 16 November 2010 by an Independent Protection Assessment Reviewer (“the reviewer”) to the Minister for Immigration and Citizenship (“the Minister”) notified to the applicant on 10 March 2011, that SZQDS not be recognised as a person to whom Australia has protection obligations pursuant to the United Nations Refugees 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 (“M61”)).
When this case first came on for directions it was before another Federal Magistrate. Orders were made at that time to transfer the matter to my docket and to be heard concurrently with that of Razai v Minister for Immigration & Citizenship & Anor [2011] FMCA 777 (“Razai”). The basis for the transfer was that the legal issues in both cases were the same. However, at the hearing Mr 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 Markus appeared for the first respondent in both matters.
The applicant had 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 Khalil/Nasr [sic] 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) what 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 Khalil/Nasr [sic] faction; and
b) That protection afforded by the Hizb-I Wahdat Khalil/Nasr [sic] 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 Khalil/Nasr [sic] 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.”
[Grounds 3 and 7 were 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 cases.
The Evidence
The evidence in this matter is:
1)The Court Book (“CB”) filed on 26 May 2011.
2)Items 12 to 19 of Volume 1 and Volume 2 of the Court Book filed in Razai.
3)The affidavit of Anna Maria Berridge sworn on 26 July 2011 annexing a transcript of an interview by the reviewer of SZQDS.
(Written submissions were filed on 29 July 2011.)
The Claims to Protection
The applicant is an Afghani national who sought protection in Australia based on his Hazara ethnicity and Shia religion. He claimed to be in need of protection because, as an Hazara, he feared serious harm from Pashtuns and the Taliban.
Following an assessment by a delegate of the Minister, who recommended that the applicant was not a person to whom Australia had any protection obligations (CB 62 to CB 76), the applicant sought review of this assessment by an Independent Protection Assessment Reviewer (CB 77). It is the assessment and recommendation of this reviewer that is the subject of the application to the Court (CB 117 to CB 141).
State Protection: The Issue
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 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 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 he had suffered harm in the past as a result of his ethnicity and religion, which necessitated his family’s move from his home area of Dahmarda in the province of Ghazni (when he was aged about 13 years) 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 – [82] at CB 134) from the Taliban, 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 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.
Mr Blount relied on the following material to explain his attack:
1)The applicant is an Afghan of Hazara ethnicity.
2)His ancestral village is Dahmarda, near Ghazni Province (CB 4).
3)The applicant’s claim that a person of Pashtun ethnicity would kill him if he were to return (CB 19).
4)The applicant sought protection because, as an Hazara, he feared harm (persecution) from Pashtuns and the Taliban (CB 46).
5)In submissions to the reviewer the applicant’s representative put (amongst other matters) that, to the extent that harm was feared from non-state actors, state protection on the whole was not available in Afghanistan (CB 83).
6)The reviewer sent a “natural justice” letter (dated 17 January 2011) to the applicant. Relevantly, the issue of Hazara factions providing protection to the applicant was raised (CB 94).
7)The applicant’s representative responded (5 February 2011) and amongst other matters stated (CB 110.5):
“Hazaras continue to face persecution at the hands of
non-state agents – the Taliban from who there is no effective protection from the state. Due to the increasing stronghold of Taliban power in Afghanistan, they are able to operate with impunity and without geographical restrictions. Although a State cannot protect every citizen from every attack, it’s reasonable to expect a standard of protection that is owed by the State to its citizens. James Hathaway states:
‘… there is no meaningful protection when a government supports or condones privately inflicted violations of core human rights…’ and ‘Thus the state which ignores or is unable to respond to legitimate expectations of protection fails to comply with its most basic duty, thereby raising the prospect of a need for surrogate protection. Intention to harm on the part of the State is irrelevant: whether as the result of commission, omission or incapacity, it remains that people are denied access to basic guarantees of human dignity, and therefore merit protection through refugee law.
With the current security situation in Afghanistan, the government is often unwilling to protect Hazaras, they continue to suffer passive persecution and pervasive discrimination by the state and law enforcement authorities who are unable to protect Hazaras to an appropriate level due to the increasing stronghold of Taliban power, merits protection in countries of asylum.”
[Emphasis in original. Footnotes omitted.]
8)The reviewer in his decision record acknowledged that the applicant’s representative had made submissions on: “The lack of State protection in Afghanistan.” (CB 122.10.)
Mr Blount submitted that, on a plain reading of the reviewer’s decision record, that one-line acknowledgement (at [13.8] above) is the only reference to state protection in the reviewer’s own words. (There are references to it in “country information” referred to by the reviewer in his decision record.)
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 also found that the applicant’s home village, although not actually in the district of Jaghori, was “very near” and was administratively under the “auspices” of that area. Following consideration of the question of security in Jaghori and another district, Dahmarda, he concluded, based on advice from the Australian Department of Foreign Affairs and Trade (“DFAT”), that: “… Jaghori is a [sic: an] Hazara-dominated district in Ghazni province and there is not a situation of generalized [sic] violence in the district.” ([103] at CB 138.)
The reviewer made reference to country information to the effect that the Jaghori district remained “… out of reach of Taliban control due to the military and political power...” of an Hazara faction, although reference is also made to there having been no reported clashes between the Taliban and the Hazara factions there ([105] at CB 138).
After considering the country information the reviewer concluded:
1)That while Dahmarda (the applicant’s home area) was not geographically within the Jaghori district, the applicant would be living in an Hazara-dominated area and close to the administrative centre of the whole area ([107] at CB 139).
2)That, because of the military and political power of Hazara factions, the applicant could return to reside in Dahmarda and nearby Jaghori ([107] at CB 139).
Ultimately, 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 ([108] at CB 139).
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]).
For the sake of completeness, I note that [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”.
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 enquiry raised by Article 1A(2) of the Refugees 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 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.
Mr Blount 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] of S152 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.]
Mr Blount presses that the majority judgment (at [21] – see [21] 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.”
Mr Blount 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.”
Mr Blount 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 [107] (at CB 139), 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.
At [107] (CB 139) the reviewer said:
“After considering the country information, I conclude that whilst Daimurda [sic] is not geographically within Jaghori district, the claimant would be conducting his life in a Hazara dominated area close to Jaghori and close to the district centre of
Sang-e-Masha in the region’s south which administers the area. Whilst Daimurda [sic] is geographically located in northern Zabul province, available information shows it is protected by Hazara factions and in particular the Hizb-i Wahdat Khalili/Nasr faction which seems to be robust across the Hazarajat. There are still no reported clashes between the Taliban and Hizb-i Wahdat Khalili/Nasr faction, and there is not a situation of generalized [sic] violence in the Daimurda [sic] area. I conclude the security situation in the Daimurda [sic] (and nearby Jaghori) area does not prevent the claimant from returning to reside there. The claimant states he has no political profile or affiliations. He has not claimed he or his family have been associated with any political faction in Afghanistan, and he has not made any claims that he fears to return to his home area because of a fear of harm from the Hizb-i Wahdat Khalili/Nasr faction or any other Hazara faction. I do not accept that the reported Hazara factional fighting in Daimarda [sic] village in 2003 will now adversely affect the claimant many years later. I conclude there is not a real chance that the claimant will face serious harm in the reasonably foreseeable future in his home area.”
[Emphasis added – see [48] – [52] below.]
The use of the word “protected” in [107] (“… available information shows it is protected by Hazara factions…”) does not, 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 relevant reasoning is that, given the “protection” offered to the Dahmarda region by the Hazara factions (a region found to be an Hazara dominated region close to another Hazara location (Jaghori)), the applicant was not at risk of serious harm for a Convention reason such that the adequacy of protection afforded by the state to him becomes an issue for consideration. This was, in context, also with reference to other relevant findings made by the reviewer.
The use of the term “protected” in this context is perhaps infelicitous (see [44] above). However, as the Court is often reminded, decision records of this type “are not to be construed minutely and finely with an eye keenly attuned to the perception of error” (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”) citing Collector of Customs v Pozzolanic Enterprises Pty Ltd [1993] FCA 456; (1993) 43 FCR 280; (1993) 115 ALR 1).
“Protected” here is obviously meant as a description of the dominating presence of Hazaras and the robust presence of Hazara factions in the relevant district 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 or Pashtuns.
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 or Pashtuns) 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 Mr Blount also referred to the judgment of Kirby J in S152, and the reference there to Minister for Immigration v Khawar [2002] HCA 14; (2002) 210 CLR 1; (2002) 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.]
Mr Blount’s 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. Mr Blount took the Court to the applicant’s representative’s submission to the reviewer, and in particular, to that part already set out at [13.7] above.
All of 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.
The applicant also misconstrues the reviewer’s relevant findings as follows. Notwithstanding his representative’s submission that Hazaras face harm from the Taliban in all of Afghanistan, the reviewer found, based on country information before him which he preferred as it related to Dahmarda and Jaghori, that in those areas the applicant would not face a real chance of serious harm from the Taliban. The reviewer’s reasoning and findings, spread over [102] to [106] (at CB 138), 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 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.
I should just note the submissions before the Court that the reviewer was highly conscious of, and highly aware of, the relevance of the presence of the Taliban in the vicinity of the applicant’s home area because he referred to country information that there were no reported clashes between the Taliban and the Hazara factions in that area, and that the Taliban had not taken steps to challenge the Hazara factions in these areas (see for example [105] at CB 138). These submissions do not assist the applicant now.
The applicant made a subsequent submission that it is “not a long step for the [Court] to find that the decision-maker accepts that there is a very real threat of harm should the Taliban ever take steps to challenge” the Hazara factions. This is without substance.
The reviewer plainly made no such finding. It is not for the Court to intervene and make any such finding or to find, in the circumstances, that the reviewer made any such findings. The reviewer found that, to the contrary, there was no threat of any such harm in the reasonably foreseeable future (see [107] at CB 139.4).
The respondent relied on Siaw v Minister for Immigration and Multicultural Affairs [2001] FCA 953 (“Siaw”), especially at [7] to [8], for the proposition that (as still applies): “… 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 the state and 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 claimed to fear harm in all of Afghanistan from the Taliban and Pashtuns. The Tribunal 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 (leave was granted for particular (d) to be further amended: “what” was deleted and was replaced with “whether”) 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, 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 immediate 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 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).
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 district.
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 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 specifically addressed the matter of Hazara factional fighting, including what this may have implied about the factions themselves. He found that the factional fighting was no longer a factor that would adversely affect the applicant if he were to return in the foreseeable future ([107] at CB 139). 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 particulars to the ground explain that certain “specific assumptions” were not put to the applicant, denying him the opportunity to call evidence in reply or make submissions. These “assumptions” are said to be that the Jaghori and Malistan districts remain outside of Taliban control due to the power of an Hazara faction, and that the protection afforded by this Hazara faction is strong across all the Hazara districts, including Jaghori.
In his decision record, the reviewer refers to a 2004 UNHCR report ([105] at CB 138.7), which is consistent with a later (2009) “CPAU report” (Cooperation for Peace and Unity: - see fn.18 at CB 131), which relates to the Jaghori and Malistan districts, including in terms as particularised by the applicant’s ground now (see the first dot point at [105] of the reviewer’s record at CB 138).
The Minister seeks to draw some distinction between “assumptions” and findings of fact. In my view, neither characterisation is accurate. As the reviewer himself characterises these points, this is “information” on which he based, in part, his reasoning that as the applicant, an Hazara without any distinguishing feature to make him of especial note from other Hazaras, would be conducting his life in an area within the control of the Hazara factions, would not face serious harm in the foreseeable future if he were to live there.
The broad relevant procedural fairness principle applicable here, the reviewer’s procedural fairness obligation, is that the applicant has a right to be told the substance of the case to be addressed, and be given an opportunity to respond to it. Simply, an applicant affected by an administrative decision should know the case against him and be afforded a reasonable opportunity to respond (Kioa v West [1985] HCA 81; (1985) 159 CLR 550; (1985) 62 ALR 321 (“Kioa”) per Mason J at 582 (CLR publication)).
Of course, the basis for this obligation is that the subject of an administrative decision be given the opportunity to be heard (Kioa at 587. See also VAAC v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 74, especially at [27]).
In the current case, this means the reviewer was required to plainly raise the issue, or issues, on which the decision would turn so that the applicant would have the opportunity to be heard on them. As was said in M61 (at [89]), the reviewer is required to put to the applicant the substance of matters that he considered may bear upon whether to accept the applicant’s claims.
It is well to remember that while not every failure to provide adverse information would necessarily lead to a breach of procedural fairness, the central issue is whether the information, apart from being credible, is relevant and significant to the decision, or whether it is an “important plank” in the reviewer’s reasoning (Kioa at 639, Minister for Immigration and Multicultural and Indigenous Affairs v Applicants S194 of 2002 [2003] FCAFC 273 at [17]).
As stated in the application, the applicant’s ground does not succeed. The substance of the information referred to above was put to the applicant both at the interview with the reviewer (see the affidavit of Ms Berridge, Annexure “C” – the pages of the transcript are unhelpfully unpaginated – at the 7th to 10th pages), and squarely in the letter from the reviewer’s office dated 17 January 2011 (“in the natural justice letter”) (see CB 94, and particularly CB 101 to CB 103). On any plain reading, of both the transcript and the letter, the applicant should have known the case against him.
The applicant was given the opportunity to respond at the interview (with his adviser present) and in response to the reviewer’s letter (see CB 94.8 to CB 95.2). The applicant’s representative did respond, although interestingly, and probably explaining the basis of the applicant’s central attack now, focussed more on the issue of relocation to Kabul.
In any event, ground 6, as it appears in the pleadings, is not made out on the material before the Court.
In both written and oral submissions ground 6 is argued in a different way to that set out in the particulars. The submission is that the applicant was denied procedural fairness because the reviewer did not put to the applicant the “determinative weight” given by the reviewer to the protection afforded by the Hazara faction on the “secured routes” between Kabul and the applicant’s home area. This was said to have denied the applicant the opportunity to call evidence on such protection offered by this Hazara faction.
In oral submissions the applicant referred to the “natural justice” letter and that, while the applicant was put on notice of the political and military power of the Hazara factions (which appeared to a significant extent to contradict the thrust of particular 6(a) in the application to the Court), and the possibility of relocation to Kabul, he was not put on notice of the highly relevant consideration that he could travel safely from Kabul to his “ancestral village in Dahmarda”.
Again, with reference to the transcript of the interview and the representative’s submission in response to the “natural justice” letter, this complaint must be rejected.
The transcript reveals (Annexure “C” – “page” 9) that the reviewer specifically raised information about the question of travelling in and out of Jaghori, and the “secure route” into Jaghori. This exchange continues to “page” 10.5. In the representative’s letter in response to the reviewer’s “natural justice” letter (of 17 January 2011), the representative made specific reference to “access” to Dahmarda (CB 107.7).
I should just note that, to the extent that the attack on the reviewer complains that what was not put to the applicant for comment was that he would not face serious harm travelling to his home area because the Hazara faction “secured routes” from Kabul, this does not reflect what the reviewer actually reasoned (see [108] at CB 139). The reviewer’s reasoning, based on DFAT information before him, was that there are “secure routes” between Kabul and Jaghori, and that the protection afforded by the Hazara factions was an additional element in support of the reviewer’s conclusion (“… together with…”).
This DFAT advice and the matter of the “secure routes”, and the power of the Hazara factions both in Jaghori and as it relates to the “secure routes”, was squarely put to the applicant in the country information attached to the “natural justice” letter of 17 January 2011 (see at CB 100 to CB 103).
In all, ground 6 is not made out. Ground 7 was not pressed.
Conclusion
For the applicant to succeed the Court would need to discern some legal error in the recommendation made by the reviewer. No such error arises on the grounds that the applicant, with legal assistance, has put before the Court, nor from the way those grounds were explained or argued. The application to the Court is to be dismissed. I will make an order accordingly.
I certify that the preceding one hundred and six (106) paragraphs are a true copy of the reasons for judgment of Nicholls FM
Date: 27 October 2011
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