SZQDZ v Minister for Immigration and Anor (No.2)
[2013] FCCA 1318
•17 September 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZQDZ v MINISTER FOR IMMIGRATION & ANOR (No.2) | [2013] FCCA 1318 |
| Catchwords: PRACTICE & PROCEDURE – Proceeding remitted by the Federal Court of Australia for the making of final orders following successful appeal on a discrete issue. |
| Legislation: Migration Act 1958, s.477 |
| Cases cited: SZQDZ v Minister for Immigration & Citizenship [2011] FMCA 652 SZQDZ v Minister for Immigration & Citizenship (2012) 200 FCR 207 SZQRW v Minister for Immigration & Citizenship [2012] FMCA 191 SZQDZ v Minister for Immigration & Citizenship [2012] FMCA 793 SZQDZ v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCCA 1119 |
| Applicant: | SZQDZ |
| First Respondent: | MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS & CITIZENSHIP |
| Second Respondent: | CHRISTOPHER PACKER IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER |
| File Number: | SYG 758 of 2011 |
| Judgment of: | Judge Cameron |
| Hearing date: | 2 September 2013 |
| Date of Last Submission: | 2 September 2013 |
| Delivered at: | Sydney |
| Delivered on: | 17 September 2013 |
REPRESENTATION
| Counsel for the Applicant: | Mr S.E.J. Prince |
| Solicitors for the Applicant: | SBA Lawyers |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application be dismissed.
The applicant pay the first respondent’s costs fixed in the amount of $6,646.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 758 of 2011
| SZQDZ |
Applicant
And
| MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS & CITIZENSHIP |
First Respondent
| CHRISTOPHER PACKER IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is a citizen of Afghanistan who seeks to be recognised as a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951 as amended by the Protocol relating to the Status of Refugees 1967 (“Convention”). The facts of the applicant’s case are set out in the first judgment of this Court concerning him: SZQDZ v Minister for Immigration & Citizenship [2011] FMCA 652 (“primary decision”). On 19 August 2010 he was assessed by an officer of the department administered by the first respondent as not meeting the definition of a “refugee” under the Convention. He sought a review of that decision and on 16 February 2011 the second respondent (“Reviewer) recommended that the applicant not be recognised as a person to whom Australia has protection obligations under the Convention.
In the primary decision the applicant’s application to this Court was dismissed on the bases that it had been brought outside the time limit prescribed by s.477 of the Migration Act 1958 (“Act”) and that it was not in the interests of the administration of justice to extend the time within which it could be brought. The basis on which it was found that an extension of time under s.477 of the Act was not in the interests of the administration of justice was that the applicant had not demonstrated error on the part of the Reviewer or that his substantive claims had reasonable prospects of success.
The applicant appealed that decision to the Federal Court where it was held that s.477 of the Act had no application to this case and that I had erred by dismissing the applicant’s application by reference to its provisions: SZQDZ v Minister for Immigration & Citizenship (2012) 200 FCR 207 (“appeal decision”). The matter was consequently remitted to this Court for determination having regard to the reasons in the appeal decision.
The remittal requires the Court to determine the proceeding on a final basis and by reference to the applicant’s substantive allegations, rather than on an interlocutory basis as had been the case when it was dismissed for being out of time. The issue is therefore whether the applicant has demonstrated that the independent merits review of his request to be recognised as a person to whom Australia has protection obligations under the Convention was procedurally unfair or was not conducted by reference to the correct legal principles correctly applied: SZQRW v Minister for Immigration & Citizenship [2012] FMCA 191 at [6]-[10].
Nature of remitted proceeding
Upon remittal, questions arose concerning the nature of the remitted proceeding, what issues could be raised upon remittal and whether I should disqualify myself from hearing the proceeding further. The same issues were raised by three other applicants whose matters had been similarly remitted as a result of the appeal decision. Following argument I concluded that subject to any re-opening of the applicants’ cases, there was no need or reason to reconsider them and no call to permit amendments, further hearings or further submissions in relation to them. I found that the question which the Federal Court remitted to this Court in each of the four cases could, and absent a re-opening should, be determined in accordance with the findings made in the primary decision applicable to each of those applicants: SZQDZ v Minister for Immigration & Citizenship [2012] FMCA 793 at [29].
The applicant in this proceeding has not sought subsequently to re-open his case although he did seek unsuccessfully to amend his application for a second time: SZQDZ v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCCA 1119.
Consideration
In his amended application to this Court the applicant alleged:
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”).
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.
3.The second respondent’s recommendation was not made in accordance with law because the second respondent took an irrelevant consideration into account.
4.The second respondent’s recommendation was not 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.
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.
6.The second respondent’s recommendation was not made in accordance with law because the second respondent denied the applicant procedural fairness.
The relevant findings made in the primary decision in this proceeding were that:
Reviewer misunderstood the tests under the Convention and Act
…
The applicant’s argument was that the availability of effective state protection was a matter to be considered by the Reviewer whether or not he, the applicant, required protection from the Afghan state and the Reviewer erred because he did not consider this but instead concluded that protection was available from the Hizb-I Wahdat Khalili/Nasr faction.
As to the latter point, the Reviewer did not conclude that the applicant could avail himself of the faction’s protection. Rather, he found that the military and political power of that faction seemed to be robust across the Hazarajat to the exclusion of the Taliban. The Reviewer’s conclusion was simply that circumstances in the Hazarajat were such that any fear of persecution by the Taliban in that area which the applicant might have was not factually well-founded. The Reviewer said nothing about whether the applicant could avail himself of the faction’s protection, confining his observations to the practical effect which the faction’s operation in the Hazarajat had on Taliban activities in that area.
As to the other point raised by the applicant, the Reviewer’s conclusion that the applicant did not have a well-founded fear of persecution in the Jaghori district meant that there was no need for him to consider whether effective Afghan state protection was available to the applicant were he to return there. The political composition of those who keep the peace and make an area secure is not relevant to the assessment of whether an applicant has a well-founded fear: Siaw v Minister for Immigration & Multicultural Affairs [2001] FCA 953 at [7] per Sundberg J. Contrary to the applicant’s submissions, Respondents S152/2003 does not require another conclusion. Nothing said by the majority in that case suggests that in this case there was a need to consider the question of state protection in the absence of actions by third parties which could amount to persecution, whether in their own right or because of the acts or omissions of the Afghan state.
…
Reviewer failed to take relevant considerations into account
…
For the reasons given in relation to the first ground of the amended application, the Reviewer was not required to turn his mind to whether, in circumstances where the applicant did not have a well-founded fear of persecution by the Taliban were he to return to the Jaghori district, the Afghan state was able to provide him with adequate protection. As a consequence, the Reviewer did not fail to take into account a relevant consideration as the applicant alleges.
Reviewer took an irrelevant consideration into account
…
This ground of the amended application proceeds on a false premise, namely, that the Reviewer concluded that the Hizb-I Wahdat Khalili/Nasr faction provided the applicant with some form of surrogate state protection. The Reviewer did not do this; instead he found that the presence and operation of that faction in the Hazarajat had the practical effect of excluding the Taliban from operating there. To conclude that a political organisation’s military force effectively excludes the influence of another is a very different thing to saying that the former provides surrogate state protection to individuals living within its area of control.
No evidence to support Reviewer’s finding of protection in Jaghori region
…
The basis of the Reviewer’s conclusion that the applicant did not have a well-founded fear of persecution was the strength of the Hizb-I Wahdat Khalili/Nasr faction in the Hazarajat and the related fact that the Taliban were effectively excluded from that area by reason of the faction’s strength. For the reasons already given, it is not always necessary for the availability of state protection to be a factor in reasoning leading to a conclusion that an individual does not have a well-founded fear of persecution for a Convention reason. It may be, as in this case, that the fear which the applicant alleges would not be factually well-founded were he to reside in a particular part of his home country. This ground does not disclose error on the Reviewer’s part.
Reviewer misunderstood correct test to be applied under Convention and Act
…
… the issue was not whether it was reasonable and practicable for the applicant to relocate from his home district in Afghanistan but whether, were he to return to it, he would have a well-founded fear of persecution for a Convention reason. Considerations relevant to relocation within a person’s country of nationality are not relevant to the question of whether a person can return to their home district or area and live there without a well-founded fear of persecution for a Convention reason. Consequently, the fifth ground of the amended application does not disclose error on the Tribunal’s part.
Reviewer denied applicant procedural fairness
…
… the Reviewer’s recommendation was not based upon the situation in Kabul but upon his conclusion that the applicant would not face serious harm in the reasonably foreseeable future in his home area. Consequently, there was no reason to put to the applicant matters associated with Kabul although, in fact, he did. Nor was the Reviewer required to include in the natural justice letter, or to raise at the interview, matters associated with protection which the applicant might be able to obtain from the faction were he to return to his local area because the Reviewer’s recommendation was not based on any findings that such protection might have been available. His conclusion that the applicant did not have a well-founded fear of persecution in the Jaghori district was based on the faction’s exclusion of Taliban influence, not on any form of surrogate state protection which the faction might have afforded him.
As to travel to his home area, the applicant was unable to identify any claim which he had made to the RSA or to the Reviewer which was to the effect that he had a well-founded Convention-based fear connected with travel to his home area. He pointed to travel advice given by the British Government, presumably to its own nationals, that:
There is a heightened threat of roadside and ambush outside Kabul City. You should maintain a heightened level of vigilance at all time [sic], observing the strictest of security measures and avoid any unnecessary travel.
This quotation appears in the written submission which the applicant’s advisers made in support of his RSA application and before any questions of the applicant’s return to the Jaghori district of the Ghazni province were raised with him. It was quoted under the heading “Afghanistan now – Taliban resurgence” and cannot reasonably be seen to be more than a comment on the situation in Afghanistan generally. It was not a claim to have a fear of travel to Jaghori. As the applicant never claimed to have such a fear, the safety of his travel to his home district was not something which needed to be addressed in the natural justice letter. (at [29]-[31], [35], [38], [42], [46], [49], [50])
As a consequence of those conclusions it was found in the primary decision that the applicant had not made out his allegations.
As noted earlier, the nature of the order remitting the proceeding to this Court and the reasons in the appeal decision to which I must have regard are such that the findings to which reference has just been made have not been disturbed and need not be reconsidered for the purposes of the present decision.
Conclusion
By reason of the conclusions reached in the primary decision concerning the applicant’s substantive application, I find that he has not demonstrated that the Reviewer’s review was procedurally unfair or not conducted by reference to the correct legal principles correctly applied.
Consequently, the application will be dismissed with costs of $6,646 in accordance with the present fixed scale.
I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Judge Cameron
Associate:
Date: 17 September 2013
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