SZQER v Minister for Immigration & Citizenship
[2011] FMCA 738
•27 September 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZQER v MINISTER FOR IMMIGRATION & ANOR | [2011] FMCA 738 |
| MIGRATION – Persecution – review of recommendation made by independent merits reviewer (“Reviewer”) that the applicant not be recognised as a person to whom Australia has protection obligations – allegation that the Reviewer misunderstood the relevant test, failed to take a relevant consideration into account, took an irrelevant consideration into account, made a finding unsupported by evidence and denied the applicant procedural fairness. PRACTICE AND PROCEDURE – Extension of time to bring proceedings. |
| Migration Act 1958, ss.5, 36, 46A, 195A, 477 |
| Plaintiff M61/2010E v Commonwealth of Australia; Plaintiff M69 of 2010 v Commonwealth of Australia (2010) 85 ALJR 133 Minister for Immigration & Multicultural Affairs v Respondents S152/2003 (2004) 222 CLR 1 Horvath v Secretary of State for the Home Department [2001] 1 AC 489 Siaw v Minister for Immigration & Multicultural Affairs [2001] FCA 953 |
| Applicant: | SZQER |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | CHRISTOPHER PACKER IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER |
| File Number: | SYG 830 of 2011 |
| Judgment of: | Cameron FM |
| Hearing date: | 19 August 2011 |
| Date of Last Submission: | 19 August 2011 |
| Delivered at: | Sydney |
| Delivered on: | 27 September 2011 |
REPRESENTATION
| Counsel for the Applicant: | Mr P. Bodisco |
| Counsel for the First Respondent: | Mr J. Smith |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application for an extension of time to bring these proceedings be dismissed.
The application be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 830 of 2011
| SZQER |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| CHRISTOPHER PACKER IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant, who claims to be a Hazara Shia, arrived by boat on Christmas Island on 6 April 2010. On 19 June 2010 he lodged an application for a Refugee Status Assessment (“RSA”) alleging that he was a refugee and, as such, was a person to whom Australia had 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”). He is currently in immigration detention and, it may be presumed, has been so since he landed at Christmas Island. On 19 August 2010 he was assessed by an officer of the department administered by the first respondent minister (“Minister”) as not meeting the definition of a “refugee” under the Convention. He sought a review of that decision and on 22 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. The applicant was notified of that decision on 25 February 2011.
The applicant has made an application to this Court for judicial review of the Reviewer’s decision. He has sought a declaration that the Reviewer’s recommendation is affected by legal error and an injunction restraining the Minister from relying on that recommendation.
The evidence makes it clear that the applicant had no visa when he entered Australia. Because of this and the fact that he entered Australia at Christmas Island which under s.5(1) of the Migration Act 1958 (“Act”) is an “excised offshore place”, the applicant is an “offshore entry person” as defined by s.5(1) who, in the circumstances and as provided by s.46A(1) of the Act, cannot make a valid application for a protection visa. However, ss.46A and 195A of the Act also provide that the Minister may, in his discretion, lift the bar on the applicant making such an application and may grant him a visa. Relevantly, those sections provide:
46A Visa applications by offshore entry persons
(1)An application for a visa is not a valid application if it is made by an offshore entry person who:
(a) is in Australia; and
(b) is an unlawful non‑citizen.
(2)If the Minister thinks that it is in the public interest to do so, the Minister may, by written notice given to an offshore entry person, determine that subsection (1) does not apply to an application by the person for a visa of a class specified in the determination.
(3)The power under subsection (2) may only be exercised by the Minister personally.
...
(7)The Minister does not have a duty to consider whether to exercise the power under subsection (2) in respect of any offshore entry person whether the Minister is requested to do so by the offshore entry person or by any other person, or in any other circumstances.
195A Minister may grant detainee visa (whether or not on application)
Persons to whom section applies
(1)This section applies to a person who is in detention under section 189.
Minister may grant visa
(2)If the Minister thinks that it is in the public interest to do so, the Minister may grant a person to whom this section applies a visa of a particular class (whether or not the person has applied for the visa).
(3)In exercising the power under subsection (2), the Minister is not bound by Subdivision AA, AC or AF of Division 3 of this Part or by the regulations, but is bound by all other provisions of this Act.
Minister not under duty to consider whether to exercise power
(4)The Minister does not have a duty to consider whether to exercise the power under subsection (2), whether he or she is requested to do so by any person, or in any other circumstances.
Minister to exercise power personally
(5)The power under subsection (2) may only be exercised by the Minister personally. …
It was an unstated assumption in these proceedings that the Minister would consider exercising his ss.46A and 195A discretions in favour of the applicant if he received advice to that effect, advice which would be based on the recommendation of the Reviewer: see Plaintiff M61/2010E v Commonwealth of Australia; Plaintiff M69 of 2010 v Commonwealth of Australia (2010) 85 ALJR 133 at 143 [49].
In Plaintiff M61 it was held that an offshore entry person such as the applicant who seeks to engage Australia’s protection obligations under the Convention, and is detained by the Commonwealth pending the outcome of that process, must be afforded natural justice by the independent merits reviewer reviewing his case. That right requires the reviewer to conduct a review which is procedurally fair and which correctly addresses the relevant legal question or questions.
For the reasons which follow, the application will be dismissed.
Background facts
The facts alleged in support of the applicant’s claim for refugee status are set out on pages 1-9 of the Reviewer’s findings and reasons. Relevant factual allegations are summarised below.
Entry interview
The applicant made the following claims during his entry interview on 25 April 2010:
a)he is a Shia Muslim of Hazara ethnicity who was born in a village in Jaghori, in the Ghazni province of Afghanistan;
b)he left Afghanistan when he was eighteen because there was a land dispute with their neighbours who were Pashtuns. His uncle and cousin were killed in the dispute;
c)he started his own business in Pakistan and some warning letters were put in his shop;
d)his father went missing in 1997 when he travelled back to Afghanistan; and
e)he did not wish to return to Afghanistan because he would be killed by the Pashtuns as he is Hazara.
RSA application
In a statement dated 19 June 2010 and attached to his request for an RSA, the applicant made the following further claims:
a)he fears returning to Afghanistan because of his ethnicity, religion and imputed political opinion having returned from a Western country;
b)he left Afghanistan in 1995 because in his home area there had been fighting between the Kuchis and the Hazaras over land. The Kuchis would let their cattle and sheep graze on Hazara land, claiming that it was their land, and this led to fighting. The Kuchis claimed to be linked to the Taliban and threatened that if the Hazaras did not leave they would kill them, so the applicant’s family fled to Pakistan;
c)after 2000 the situation for Shias in Pakistan became dangerous;
d)in 2005 he was working for a Hazara employer who started receiving threatening letters referring to the fact that they were both Shia, accusing them of being infidels and threatening death if the shop was not closed. His employer was shot dead because he refused to close his shop;
e)after this, he fled to Iran because he was afraid that he would be killed as his employer had been. He lived in Iran for three years but after realising that life was difficult for Afghan refugees in Iran, he returned to Pakistan to see his family and to try to survive there;
f)when he returned to Pakistan he opened a welding shop. About two months after opening the shop, he began to receive threatening letters similar to those which his previous employer had received;
g)on one occasion he observed two Hazaras in a car being shot at; one of them was killed and one was seriously injured. His mother advised him to close his shop and leave the country for his safety. He made arrangements with a people smuggler to come to Australia;
h)he fears that if he returns from Australia he will be labelled a spy and the Taliban will think that because he is returning from a Western country he is against them. He also fears that he will go missing as his father did; and
i)he has no faith that the Afghan government would be able to protect him as they cannot protect themselves. He has no home to return to in Afghanistan and does not know if he has any living relatives there. If he returns to his home village, he will have to travel on dangerous roads. He cannot live in Kabul because he has heard on the news that it is not safe.
A submission in support of his application for an RSA was sent on his behalf on 17 July 2010. It was expressly a generic submission in relation to all the Afghan clients of the applicant’s migration agents.
It stated that the “claimants” feared persecution from the Taliban and Pashtuns on account of their Hazara ethnicity and Shia religion, their actual or imputed political opinion of being opposed to Taliban rule and supportive of government forces, their membership of the particular social group of actual or perceived sympathisers or supporters of the coalition forces or foreign workers/NGOs and failed asylum seekers returning from a Western country. It further stated that the persecution was in the form of “having restrictions imposed on their freedom of movement threatening their capacity to subsist or being able to participate equally in the political, economic and civil life of the country”.
Application for independent merits review
A submission was made on behalf of the applicant on 19 December 2010. It essentially repeated the applicant’s claims made in his statement of 19 June 2010.
The applicant was interviewed by the Reviewer on 21 December 2010 and made the following additional claims:
a)he did not know what had happened to their house and land in Afghanistan but assumed that Pashtuns had taken it;
b)the Taliban had complete control and he would be killed in Afghanistan. The Hazara factions were bloodthirsty but he and his father had never come to their adverse attention;
c)the local Kuchi or Pashtun leader was still “there” and would do anything to kill the applicant and, in any case, he needed land to survive; and
d)he could not live in Kabul because he has no relatives or friends there. He would be called a spy and a Christian. In addition, 4,000 to 5,000 people had been killed in Kabul and he might not be able to find work as a welder.
The applicant’s agent responded to a “natural justice letter” from the Reviewer on 8 February 2011, addressing certain country information, primarily the status of Hazara Shias in Afghanistan, and Kabul in particular, and the status of failed asylum seekers returning to Afghanistan.
Reviewer’s findings and reasons
After discussing the claims made by the applicant and the evidence before him, the Reviewer found that the applicant did not meet the criteria for the grant of a protection visa as set out in s.36(2) of the Act. The Reviewer consequently recommended that the applicant not be recognised as a person to whom Australia has protection obligations under the Convention.
The Reviewer accepted that the applicant was a Hazara and a Shia Muslim, ethnic and religious minorities in Afghanistan, but did not accept that the applicant’s ethnicity and religion by themselves meant that in Afghanistan in the reasonably foreseeable future he would face a real chance of serious harm amounting to persecution by non-state agents or the government. In this regard:
a)the Reviewer referred to country information which indicated that in the past few years individual Hazaras had at times suffered serious harm as a result of the insurgency’s attacks on persons associated with or perceived as supporting the government, in attacks on communications, facilities and road transport, and during some disputes over land and access to natural resources. However, he found that the reports did not show that Hazaras and Shia Muslims were targeted and persecuted for the sole reason of their minority status. The Reviewer found that different sources indicated that the Taliban targeted persons associated with or perceived as supporting the Afghan government and NATO forces and that this did not support the contention that Hazara Shias were persecuted for their religion and ethnicity alone, or that as Hazara Shias they were imputed with a political opinion;
b)the Reviewer was not satisfied that the effects of the general insecurity and insurgency in Afghanistan, together with the threats to safe and secure travel within Afghanistan, would give rise to a well-founded fear of persecution for a Convention reason;
c)the Reviewer found that information from various sources did not corroborate the claim that Hazara Shias were targeted by the government, the Taliban, the majority Sunni Muslims, or any other non-state party on a general basis and that instead there had been positive reports that the general situation of the Hazara Shias had improved. He noted and accepted two Department of Foreign Affairs and Trade (“DFAT”) reports which indicated that although there had been a resurgence of the Taliban, Hazaras were not targeted by the Taliban as they had been in the past, and that conditions for Hazaras had improved significantly since the fall of the Taliban, but that limited employment opportunities, security challenges and a perception of discrimination encouraged Hazara migration; and
d)the Reviewer did not accept that the social discrimination against Hazaras referred to by some sources, including the United Nations High Commissioner for Refugees (“UNHCR”), DFAT and the US Department of State, was so severe that it amounted to persecution.
The Reviewer did not accept that the land dispute or the disappearance of the applicant’s father would lead to a real chance of serious harm amounting to persecution if the applicant returned to his home area. The Reviewer said that he could not discount that there had been land disputes concerning the family farm in the past but found that they occurred fifteen years ago, before the start of the Taliban regime.
He also accepted that the applicant’s father had disappeared in 1997 but found that the location and reason for the father’s disappearance was never discovered, that it occurred during the Taliban regime and was by then in the distant past.
The Reviewer was satisfied that the applicant’s home village was in the north of Zabul province abutting Jaghori district, the Reviewer found that there was not a real chance that the applicant would face serious harm in the reasonably foreseeable future, either in his home area or in travelling to that area upon his return, amounting to persecution for a Convention reason. In this regard:
a)after referring to DFAT information, a 2004 UNHCR report and a 2004 Cooperation for Peace and Unity (“CPAU”) report, the Reviewer found that the whilst the applicant’s village was not geographically in the Jaghori district, and whilst there was a land dispute in 1995, the applicant would be conducting his life in a Hazara dominated area close to Jaghori. He found that whilst the applicant’s village was geographically located in northern Zabul province, it was protected by Hazara factions, particularly the Hizb-i Wahdat Khalili/Nasr faction which was robust across the Hazarajat. The Reviewer found that there were no reported clashes between the Hizb-i Wahdat Khalili/Nasr faction and the Taliban and there was no situation of generalised violence in that area, concluding that the security situation in the applicant’s home area and in Jaghori would not prevent him from returning to reside there;
b)the Reviewer accepted that the applicant had no political profile or affiliations. He found that the applicant had not claimed that he or his family had been associated with any political faction in Afghanistan and he did not claim that he could not return to his home area because of the Hizb-i Wahdat Khalili/Nasr faction or any other Hazara faction. In light of the applicant’s lack of any past or current political profile, the Reviewer did not accept that reported Hazara factional fighting in the applicant’s local area in 2003 would adversely affect the applicant many years later;
c)the Reviewer noted and accepted DFAT advice which indicated that there are secure routes between Kabul and Ghazni, and between Ghazni and Jaghori. These secure routes, and the protection afforded by the strong Hazara factions in the Daimurda and Jaghori areas, led the Reviewer to conclude that there was not a real chance that the applicant would face harm travelling to his home area upon his return to Afghanistan; and
d)the Reviewer acknowledged that the economic conditions throughout Afghanistan were poor but did not accept that the applicant’s personal financial circumstances upon his return would mean that he faced a real chance of harm for a Convention reason.
The Reviewer did not accept that the applicant had a well-founded fear of persecution due to an imputed political opinion or due to his membership of any of the following particular social groups: actual or perceived sympathisers or supporters of the coalition forces or foreign workers/NGOs; returnees from Western countries; failed asylum seekers returning from a Western country or as a returnee however described. In this regard:
a)the Reviewer referred to country information indicating that there had been incidents of harm to deportees where they were known or suspected to have returned with large amounts of money but stated that these incidents appeared isolated and related to their particular circumstances and the general insurgency. He noted that other sources referred to the economic and social difficulties facing returnees but not to them being adversely targeted by non-state agents or government authorities simply because they were returnees;
b)the Reviewer referred to a DFAT report which noted that individuals returning to Afghanistan where they no longer had a family, land or a social network would have difficulties but found that the applicant and his family would still have community and tribal links in his home area; and
c)the Reviewer noted and accepted a DFAT report indicating that Hazaras would not be targeted because they had sought asylum in the West and concluded that there was no credible evidence before him that persons returning to Afghanistan from Western countries as failed asylum seekers were targeted and persecuted for a Convention reason. The Reviewer found that the applicant had not provided any compelling evidence that he had modified his religious views or been Westernised to any degree such that he would receive adverse treatment for becoming Westernised, atheist or un-Islamic in his practices. He did not accept that the applicant would be considered a spy or a Christian on his return to Afghanistan.
Proceedings in this Court
The applicant seeks an extension of time to bring these proceedings. In his application he stated:
1.The applicant was notified of the decision of the Independent Merits Reviewer on 25 February 2011.
2.The applicant found difficulty contacting the migration lawyer who assisted him apply for a protection visa while he was on Christmas Island. When he did so the migration lawyer was not able to assist the applicant apply to the Federal Magistrates Court (FMC).
3.The applicant later heard that a group called Balmain for Refugees was trying to assist those refused protection by the Independent Merits Review.
4.The applicant contacted Frances Milne from Balmain for Refugees and asked for a lawyer to assist him apply to the FMC for review of the decision of the Independent Merits Reviewer.
5.Ms Milne indicated there were not enough lawyers to assist at that time and she was attempting to find more.
6.In mid April barrister Mr Bodisco confirmed the grounds in this application as having reasonable prospects of success.
6.The applicant requests an extension of time.
The grounds of the amended application were pleaded as follows:
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 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.
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.
Application for extension of time
Section 477 of the Act relevantly provides:
477 Time limits on applications to the Federal Magistrates Court
(1) An application to the Federal Magistrates Court for a remedy to be granted in exercise of the court’s original jurisdiction under section 476 in relation to a migration decision must be made to the court within 35 days of the date of the migration decision.
(2) The Federal Magistrates Court may, by order, extend that 35 day period as the Federal Magistrates Court considers appropriate if:
(a) an application for that order has been made in writing to the Federal Magistrates Court specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and
(b) the Federal Magistrates Court is satisfied that it is necessary in the interests of the administration of justice to make the order.
The Reviewer’s decision was dated 22 February 2011 and thus, to be within the time limit prescribed by s.477, the application commencing these proceedings should have been filed by 29 March 2011. However, it was filed one month later on 29 April 2011 and is thus out of time. The passages from the initiating application quoted above at [18] demonstrate that the applicant has complied with the formal requirements of s.477(2)(a). It is therefore necessary to consider whether it is in the interests of the administration of justice that time to bring these proceedings be extended. I consider that the appropriate matters to take into account on that question in the context of this matter are whether the applicant has a satisfactory explanation for the delay in commencing the proceedings and whether, were time to be extended, the application would have reasonable prospects of success.
As to the first of these matters, in her affidavit affirmed 19 August 2011 Frances Lillian Milne deposed to her work assisting persons such as the applicant and the difficulties she had encountered in arranging legal representation for persons such as the applicant. No sworn evidence was given by the applicant to the effect of the allegations made in his initiating application, but I am willing to accept what Ms Milne says and, on that basis, to conclude that the applicant has demonstrated a satisfactory explanation for the delay in commencing the proceedings. As to the second consideration, for the reasons which follow I conclude that the applicant’s principal claims do not have reasonable prospects of success. For that reason, the application to extend time to bring these proceedings will be refused.
Relevant test misunderstood
The applicant alleged that the Reviewer misunderstood the correct test to be applied under the Convention and the Act. It was submitted that the Reviewer had asked himself the wrong question and that this was demonstrated by the fact, it was said, that the Reviewer had based his decision on the issue whether the applicant could avail himself of protection by non-state actors rather than the protection of the Afghan state.
The applicant referred to the Reviewer’s conclusion that the applicant’s home area was protected by Hazara factions and in particular the Hizb-I Wahdat Khalili/Nasr faction “which remains robust across the Hazarajat” and to the fact that there were no reported clashes between the Taliban and the Hizb-I Wahdat Khalili/Nasr faction or a situation of generalised violence in the area. The applicant pointed to the Tribunal’s consequent conclusion that the security situation in the applicant’s home area in the Jaghori district did not prevent him from returning to reside there.
The applicant referred to Minister for Immigration & Multicultural Affairs v Respondents S152/2003 (2004) 222 CLR 1. In that case Gleeson CJ, Hayne and Heydon JJ discussed the Convention and, in particular, the immediate context of its operation being that of a putative refugee who is outside the country of his nationality and who is unable, or owing to fear of persecution unwilling, to avail himself of the diplomatic or consular protection extended abroad by a country to its nationals. Their Honours also discussed the wider context of the Convention’s operation being its general purpose of enabling a person who no longer has the benefit of protection against persecution for a Convention reason in his own country to turn to the international community for protection. Their Honours cited with approval the view taken by the majority of the House of Lords in Horvath v Secretary of State for the Home Department [2001] 1 AC 489 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:
a)to whether the fear is well-founded;
b)to whether the conduct giving rise to the fear is persecution; and
c)to whether a person is unable or, owing to fear of persecution, is unwilling to avail himself of the protection of his home state.
That is to say:
a)if state protection is sufficient, the applicant’s fear of persecution by others will not be well-founded;
b)if state protection 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; and
c)if state protection is insufficient, it may be the reason why the applicant is unable, or if its amounts to persecution unwilling, to avail himself of the protection of his home state. (Respondents S152/2003 at 9 [21])
The applicant submitted that the purpose of the Convention was for the international community to provide protection in circumstances where a person’s country of nationality is unable to provide it and that whether a person’s country of nationality can do so is the focus of the Convention definition of refugee. The applicant submitted that the Reviewer did not ask himself whether the Afghan state provided a level of protection which met international standards in that the Reviewer had failed entirely to consider the Afghan state’s ability to provide protection in the Jaghori district and, instead, asked whether the Hizb-I Wahdat Khalili/Nasr faction was able to provide the applicant with protection. He submitted that, in doing so, the Reviewer did not assess whether the faction was a state actor or a non-state actor.
The obligation imposed on a decision-maker to consider whether state protection is available to a person claiming persecution in their home country depends on the decision-maker, or the Reviewer in this case, first being satisfied that the person does, in fact, have a well-founded fear of persecution for a Convention reason. It is not until a person has been found to have such a fear that it is necessary to consider whether he or she can access protection from such conduct. As McHugh J said in Respondents S152/2003:
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. 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. (at 14 [33])
Further, Sundberg J said in Siaw v Minister for Immigration & Multicultural Affairs [2001] FCA 953 at [7]:
… 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”.
That is to say, the availability of state protection only becomes relevant in the event that an applicant is found to have a well-founded fear of persecution for a Convention reason. The availability of state protection in such circumstances goes to the question whether, taking that consideration into account, the applicant’s fear is truly a well-founded one. Its relevance does not go beyond that question.
Sundberg J also pointed out in Siaw at [7] that the political composition of those keeping the peace and making an area secure is not relevant to the assessment of whether an applicant has a well-founded fear.
The question is whether the conditions in the area are such that he does or does not have a well-founded fear of persecution for a Convention reason, not whether the applicant’s lack of fear of persecution is brought about by reason that the area to which he may return is controlled and rendered, for him, safe by third party actors.
Consequently, in this case, the Reviewer was not required to consider whether the Afghan state could provide adequate protection for the applicant in his home area because it was found that he had not demonstrated that he had a well-founded fear of persecution for a Convention reason in his home area.
Failure to take a relevant consideration into account
The applicant submitted that the consideration which the Reviewer should have, but did not, take into account was his claim that the state of Afghanistan did not offer him adequate protection from persecution by the Taliban. He submitted that the Reviewer failed to make any finding in relation to his evidence that the state of Afghanistan did not provide adequate protection against persecution in the Jaghori district of that country. He also submitted that the Reviewer failed to make findings concerning state toleration of, or discrimination with regard to, persecution of members of the particular social groups of which he claimed to be a member.
Notwithstanding the applicant’s submissions in relation to the second ground of the amended application, for the reasons given in relation to his first allegation, this ground is unsuccessful. Because the Reviewer concluded that the applicant did not have a well-founded fear of persecution for a Convention reason in his home area, the Reviewer was not required to consider whether the Afghan state was capable of providing him with protection.
Irrelevant consideration taken into account
The applicant submitted that whether non-state actors provide protection is not relevant to the test of whether a person’s fear of persecution is well-founded. He submitted that the Reviewer took that irrelevant consideration into account and did not determine whether his fear of persecution was well-founded in accordance with law.
However, the Reviewer did not determine that the applicant was able to access protection from non-state actors. What the Reviewer did was to conclude that the operation of the various Hazara factions relevantly had the practical effect that the applicant’s claim to fear persecution in his home area was not well-founded.
Finding made without evidence
The applicant submitted that there was no evidence to support the Reviewer’s finding that he would be afforded adequate protection in the Jaghori region. He submitted that the Reviewer’s consideration of this issue was based on evidence concerning non-state actors and that there was no evidence “on which to base his findings that the state of Afghanistan afforded adequate protection to the applicant”. He further submitted that:
By making a finding in relation to the protection afforded to the applicant in circumstances where the relevant protection is state protection, but where no evidence in relation to the ability of the state of Afghanistan to provide protection was considered, the second respondent made a recommendation without evidence and therefore not made in accordance with law.
Contrary to the applicant’s submissions, the Reviewer made no finding that the state of Afghanistan afforded him adequate protection.
The relevant finding in para.107 of the Reviewer’s decision was to the effect that the applicant’s home region was protected by Hazara factions and, in particular, the Hizb-I Wahdat Khalili/Nasr faction, in the sense that their operation had the practical effect of excluding Taliban influence in the applicant’s home area.For these reasons, this allegation made in the amended application is not made out.
Relevant test misunderstood
The fifth ground of the amended application is essentially the same as the first but particularised by reference to different matters, namely:
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 attached to any protection offered by the Hizb-I Wahdat Khalili/Nasr faction.
Based on the applicant’s submissions, this allegation has two bases. The first turns on the quality of life which the applicant could expect were he to return to his home district, the second being whether it was reasonable for the applicant to resist returning to his home area because it would be unsafe to travel there.
As to the latter point, the Reviewer expressly found, as was open to him on the facts, that there was not a real chance that the applicant would face serious harm in the reasonably foreseeable future travelling to his home area upon his return to Afghanistan.
As to the other elements of the allegation, the issue which the Reviewer had to address was whether the applicant had a well-founded fear of persecution for a Convention reason in his home area, not whether he would enjoy living there or whether the quality of life in his home area was equivalent to that which he might enjoy elsewhere. Further, the applicant’s submissions concerning whether his unwillingness to return to the Jaghori district was objectively reasonable, thereby importing considerations relevant to questions whether a person might reasonably relocate within their home country because they have a well-founded fear of persecution in one place which would not exist in another, is not relevant in this case which is concerned with whether the applicant has a well-founded fear of persecution for a Convention reason in his home area.
For these reasons, the fifth ground of the amended application is not made out.
Denial of procedural fairness
The sixth ground of the amended application was particularised as follows:
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.
The applicant submitted that procedural fairness required the Reviewer to put before him the substance of matters which the Reviewer knew of and considered might bear upon whether to accept the applicant’s claims. He submitted that he had proceeded on the assumption that the inadequacy of state protection was in issue whereas the Reviewer relied on “the assumption that the protection afforded by the faction satisfied the requirement that the applicant would be adequately protected in the Jaghori district”. He submitted that the Reviewer should have alerted him to the determinative weight which was to be given to the protection afforded by the faction and the Reviewer’s failure to do so denied him an opportunity to call evidence concerning that issue.
However, para.29 of the Reviewer’s reasons records that at the interview on 21 December 2010 the Reviewer expressly put to the applicant, amongst other things, that
The Jaghori district of Ghazni province is not a Taliban dominated area and remans secure. One source reports the district remains out of the reach of Taliban control due to the military and political power of Hiz-i [sic] Wahdat Khalili/Nasr faction.
In this regard, it should be recalled that the issue was whether the applicant could live in his home area without a well-founded fear of persecution for a Convention reason, not whether he could live anywhere in the Hazarajat. The Reviewer went on in the next paragraph to record that he had then indicated to the applicant that this, and the other matters he put to the applicant, might mean that in his home area the applicant would not suffer persecution for a Convention reason and could live there securely.
Consequently, the Reviewer did discharge his obligation to put relevant matters to the applicant. He was not required, however, as the applicant submitted, to alert him to the “determinative weight given to the protection afforded by the faction”. The Reviewer had no obligation to indicate to the applicant what, if any weight, any particular matter would have in the ultimate determination of the review.
For these reasons, the final ground of the amended application is not made out.
Conclusion
As none of the matters raised by the applicant in his amended application disclose error on the part of the Reviewer, I conclude that his substantive application has no reasonable prospects of success. As a consequence, I do not consider it to be in the interests of the administration of justice to extend time for the commencement of these proceedings and that aspect of the application will be dismissed.
As an extension of the time for the commencement of the proceedings will not be granted, the application will be dismissed.
I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of Cameron FM
Associate:
Date: 27 September 2011
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